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15 Int'l Trade & Bus. L. Rev. 297 (2012)
Establishing Jurisdiction through a Most-Favoured-Nation Clause

handle is hein.journals/itbla15 and id is 307 raw text is: ESTABLISHING JURISDICTION THROUGH A MOST-FAVOURED-NATION CLAUSE AZLAN MOHAMED NOH Abstract Public International Law - Foreign Direct Investment - Bilateral Investment Treaty - Most- Favoured-Nation Clause - International Arbitration - Dispute Resolution Most-favoured-nation treatment has long existed at international law, primarily for the purpose of providing equality of treatment of one national of a State's investment within a host State when compared to another national of a State's investment within that same host State. However this article explores the increasing trend of claimant States, in a dispute brought under the dispute resolution provisions of a bilateral investment treaty, referring to a most-favoured-nation clause not for the usual purpose of improving the substantive treatment afforded to their national's investment but rather, with the aim of invoking a more favourable dispute resolution clause found in a third State's bilateral investment treaty with the host State. This throws into question one of the fundamental cornerstones of international arbitration, that is, party autonomy. This is so particularly with respect to the parties to the treaty's original selection of seat, arbitral forum and lex arbitri. I INTRODUCTION The question of whether the foreign investor may utilise a most-favoured-nation clause (hereinafter referred to as an MFN clause) to invoke a dispute resolution provision within a third party treaty has been the subject of wide discussion, with various arbitral tribunals (ICSID, SCC, ad hoc) providing unequivocal but curious statements relating to the law. Varied dispute resolution provisions operate at international law. For focus, this paper addresses the two most commonly drafted dispute resolution provisions that have been analysed by arbitral tribunals in Maffezini v Spain,' Plama v Bulgaria,2 RoslnvestCo v Russia3 and Berschader v Russia, namely: 1. Where there are conditions and limitations attached to a State's consent to arbitration, such as requiring negotiation periods for a certain period of time prior arbitration; and, Murdoch University, BMassCom, LLB; ACIarb. The author would like to acknowledge Lorraine Finlay, Nicholas Summers and Katrin Giesen for their invaluable assistance and endless words of encouragement throughout my endeavours in the study or private and public international law, including the completion of this paper. This paper was originally written as a Supervised Legal Research paper under the supervision of Lorraine Finlay. Emilio Augustin Maffezini v Kingdom of Spain, (Decision on jurisdiction of 25 January 2000) ICSID Case No ARB/97/. 2 Plama Consortium Limited v Republic of Bulgaria, (Decision on jurisdiction of 8 February 2005) ICSID Case No ARB/03/24. RoslnvestCo UK Ltd v Russian Federation, (Award on jurisdiction of October 2007), SCC Arbitration Institute Case No 080/2004. 4 Berschader v The Russian Federation, (Award of 21 April 2006), SCC Arbitration Institute Case No 080/2004.

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