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Journal of International Trade Law and Policy: Application of MFN to investment dispute settlement: rule of law issues
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Abstract
Purpose – Over the past two decades, the application of most-favoured-nation (MFN) clauses in
international investment agreements (IIAs) to dispute settlement matters has generated controversy. The
purpose of this paper is to help resolve some of the controversies by examining the rule of law issues that may
arise from such application of MFN.
Design/methodology/approach – The study describes controversies regarding the application of MFN
to dispute settlement as per the extant literature on the subject. It explores the elements of rule of law in
investor-state arbitration. The paper then analyses the implications of applying MFN to dispute settlement
matters for the elements of rule of law. Based on such analysis, the study argues that the application of MFN
to dispute settlement matters undermines certain elements of rule of law.
Findings – The paper has outlined the relevant elements of rule of law in investor-state arbitration as access
to dispute settlement; judicial (or tribunal) independence, fairness and impartiality; consistency and
predictability of law and decisions; transparency; accountability and subjection of dispute forums and
systems to law. It found that the application of MFN undermines various components of rule of law, in
particular of consistency and predictability and the requirement of tribunals to adjudicate within the limits of
the law.
Originality/value – The findings of this study will help future investor-state arbitral tribunals to decide
on the application of MFN to dispute settlement matters.
Tanjina Sharmin and Emmanuel Laryea - Personal Name
NONE
Text
ENGLISH
EMERALD INSIGHT
2021
ENGLAND
JURNAL ILMU HUKUM
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APA Citation
Tanjina Sharmin and Emmanuel Laryea. (2021).Journal of International Trade Law and Policy:
Application of MFN to investment
dispute settlement: rule of
law issues.(Electronic Thesis or Dissertation). Retrieved from https://localhost/etd