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1 Tur. Com. L. Rev. Online 1 (2015)

handle is hein.journals/tuclron1 and id is 1 raw text is: Procedural Requirements in Dispute Settlement Provisions and Application of the MFN Clause in Recent Investment Disputes by EDA COSAR DEMIRKOL* I. INTRODUCTION In 2000, the Maffezini Tribunal adopted an approach extending the application of the Most-Favoured-Nation (MFN) clause in the relevant bilateral investment treaty (BIT) to procedural rules.' Since then, the interpretation of MFN clauses in the context of their application to dispute settlement provisions has become a complex issue, which has been dealt uniformly by neither investment treaty tribunals nor scholars. This split in opinion has caused discordance in investment arbitration case law that resulted in the emergence of three different standpoints, namely, in the words of Zachary Douglas, the 'yes' school, the 'no' school, and the 'question cannot be formulated in general terms' school.2 Rather than analysing the theoretical bases underlying these approaches, this article examines the impact of the International Court of Justice (ICJ) Judgment in the Case Concerning Application of the International Convention on the Elimination ofAll Forms of Racial Discrimination (Georgia v Russian Federation) on the characterisation of procedural requirements envisaged in dispute settlement provisions, such as domestic litigation, settlement through negotiation, and waiting period requirements and the application of MFN clauses to these requirements. As a result of this examination, it explores whether the conclusion reached in Georgia v Russia has created a new trend in recent investment treaty awards. Ultimately, this article critically assesses the ICJ's approach and recent developments in investment treaty arbitration. II. INTERPRETATION OF CONDITION PRECEDENT IN GEORGIA VRUSSIA In its application dated 12 August 2008, Georgia raised a claim against the Russian Federation for the breach of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) due to the Russian Federation's alleged actions related to the ethnic cleansing of Georgians in South Ossetia and Abkhazia.3 Russia * Eda Cosar Demirkol, LL.M (Cantab) LL.B (Bahcesehir, Istanbul). Email: cosredngmnil com. 1 EmilioAgustin Maffezini v Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Objections to Jurisdiction, 25 January 2000, para. 56. 2 Z. Douglas, 'The MFN Clause in Investment Arbitration: Treaty Interpretation Off the Rails', (2010) 2(1) Journal of International Dispute Settlement 97, 98. 3 Case Concerning Application of the International Convention on the Elimination ofall Forms ofRacial Discrimination (Georgia v Russian Federation), Judgment on Preliminary Objections, 1 April 20 11, paras 16-17. ©020 15 TURKISH COMMERCIAL LAW REVIEW ONLINE, Vol. 1, 25 February 2015

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