THE APPLICATION OF THE MOST FAVORED NATION CLAUSE TO THE PROCEDURAL PROVISIONS OF BILATERAL INVESTMENT TREATIES: POSSIBILITIES FOR ESTABLISHING ICSID JURISDICTION FOR RESOLVING INVESTMENT DISPUTES

Abstract

This article explores problems related to establishing the ICSID jurisdiction to the BITs dispute settlement provisions by application of the MFN clause. Being that the application of the clause asks for very extensive interpretation of the BIT which contains this clause, the practice of ICSID tribunals in this field has been very much debated in professional and academic circles. Not only has it raised concerns about stability, predictability and legal certainty in international investment law but, more importantly, about its further development in respect of arbitrators’ powers. The article analyzes three representative cases in which ICSID tribunals made decisions on jurisdiction based on the usage of the MFN clause: Maffezini, Plama and Salini. On the basis of this analysis, certain guidelines are proposed that might be applied in future disputes brought before ICSID tribunals. These guidelines are in compliance with modern tendencies in international scene, which should be considered as the indicators of the direction for further development of this particular area of law.

Key words:  MFN clause, investment disputes, ICSID jurisdiction.