The application of the Most Favoured Nation (“MFN”) clause to investor-State dispute settlement provisions is an unsettled question in investment treaty arbitration. This stems from the fact that Bilateral Investment Treaties (“BITs”) invariably use different language to draft MFN clauses, making it necessary to interpret any given treaty on a case-by-case basis. Tribunals have found dispute resolution clauses in BITs to be procedural in nature, which is treated differently than substantive clauses on the specific issue of MFN clause application. This was the approach already promulgated in the case of Maffezini v Spain,01Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objections to Jurisdiction (Jan. 25, 2000) (“Maffezini”). in which the tribunal, despite holding that the MFN clause applied to the dispute resolution clause, nonetheless imposed public policy restrictions on its scope that did not apply to other BIT clauses. This paper argues that the recent case of Garanti-Koza v. Turkmenistan shows that the Maffezini line of cases have adopted the broader interpretation of MFN clause application to dispute resolution clauses, while rejecting the public policy limitations proposed by the Maffezini tribunal.02Garanti Koza LLP v. Turkmenistan, ICSID Case No. ARB/11/20, Decision on the Objection to Jurisdiction for Lack of Consent (July 3, 2013) (“Garanti-Koza”). This is a good thing. Dispute resolution clauses are an integral part of the system of protections provided by Bilateral Investment Treaties and so consequentially, they should be governed by the same rules of interpretation as all other BIT clauses.
In Part 2, this paper presents the interpretation of Bilateral Investment Treaties from the perspective of treaty law, rejecting in the process the use of customary international law as a tool for interpreting MFN clauses. Part 3 outlines the basic Maffezini framework and its impact on later cases. Part 4 discusses the more-recent case of Garanti-Koza v. Turkmenistan, which pushed the frontier of MFN clause application beyond Maffezini, essentially by importing consent to ICSID arbitration from a third party treaty. Part 5 examines the aftermath of Garanti-Koza and discuss the current frontiers of MFN clause interpretation. The waters of MFN clause application have become far too muddy, and a return to simplicity is necessary; the case of Garanti-Koza v. Turkmenistan heralded this same return, breaking new ground by importing consent to arbitration from a third party treaty.
2. Interpreting MFN Clauses As Treaty Law, Not Customary International Law
The Most Favored Nation clause, like all other BIT clauses, should be interpreted as treaty law and given effect according to their plain, ordinary meaning. The starting provisions for the interpretation of any treaty clause are Articles 31 and 32 of the Vienna Convention on the Law of Treaties (“VCLT”).03Vienna Convention on the Law of Treaties, arts. 31–32, May 23, 1969, 1115 U.N.T.S. 331 (“VCLT”). of the Vienna Convention on the Law of Treaties (“VCLT”). Article 31 of the VCLT provides that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”04VCLT art. 31, supra note 12. (emphasis added) Article 32 supplements that approach by allowing “recourse . . . to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.”05VCLT art. 32, supra note 13. Article 32 of the VCLT further provides tribunals the necessary ability to restrict application of the MFN clause to dispute settlement provisions in instances where doing so would render a manifestly absurd outcome. As a result, the plain and ordinary meaning of the MFN clause, interpreted under VCLT 31 and 32, should determine whether the MFN clause should apply to dispute resolution provisions.
Generally, arguments based on State practice cannot and should not influence the interpretation of a treaty rule. It is important to distinguish treaty law from customary international law in this context. Customary international law fundamentally arises from established state practice, as opposed to obligations arising from formal written international treaties. In other words, there needs to be consistent State practice that is followed out of a sense of legal obligation.06
In a similar vein, treaty rules are not subject to interpretation in light of changing State policy, other than to ascertain the objectives and intent of the signatories as under Article 31 VCLT. In fact, States sign BITs for the very reason of cutting politics out of the equation and providing investors with a solid, permanent structure that is immune to changing winds and shifting sands. Reintroducing the political tempest into BIT interpretation erases this benefit, as well as the arguable objective of establishing the BIT regime in the first place. For example, the Maffezini tribunal referred to the policy conflicts between capital exporting and capital importing States.08Maffezini, supra note 1, para. 57. However, as one commentator observed, like considerations of State practice, the “common or differing conceptions of legal systems or jurisprudence of States (like policies towards international dispute settlement) are in principle irrelevant for the purposes of interpretation, and can only become relevant to the extent that they are reflected in the wording of the particular treaties.”09Martins Paparinskis, MFN Clauses and International Dispute Settlement: Moving Beyond Maffezini and Plama? 26(2)
3. The Framework And Impact Of Maffezini v Spain
Maffezini v Spain is the case that opened the door to a plain and ordinary reading of MFN clauses and BIT dispute resolution provisions. The case concerned a chemical products joint venture between Mr. Maffezini, an Argentine national, as well as the treatment he allegedly received from Spanish authorities when he decided to withdraw from a project in Spain. The Argentina-Spain BIT provided that if a dispute cannot be settled within six months following the date on which it has been raised by a party, it shall be submitted to the court of the party in whose territory the investment was made.10Maffezini, supra note 1, para 38. It further provided that the dispute may be submitted to international arbitration by either party only after an eighteen-month waiting period, provided that during this period, no decision was rendered on the merits in the local proceedings.11Id. In his request for arbitration, Mr. Maffezini acknowledged not resorting to the Spanish courts, and he argued that such a condition in the Argentina-Spain BIT had been overridden through the operation of the MFN clause contained in that BIT. The Most Favored Nation clause provided in Article IV of the investment treaty between Argentina and Spain reads as follows:
“In ‘all matters subject to this Agreement,’ this treatment shall not be less favorable than that extended by each Party to the investments made in its territory by investors of a third country.”12Maffezini, supra note 1, para 38. (emphasis added)
In particular, Maffezini argued that the MFN clause allowed him to invoke more favorable conditions for the submission of a claim to arbitration found in BITs concluded by Spain with Chile, which does not require the 18-month local remedies period for recourse to ICSID arbitration.
The Maffezini tribunal decided that the MFN clause in the Argentina-Spain investment treaty extended to the dispute settlement provisions.13Maffezini, supra note 1, para 54. In particular, the tribunal held that:
Notwithstanding the fact that the basic treaty containing the clause does not refer expressly to dispute settlement as covered by the most favored nation clause, the Tribunal considers that there are good reasons to conclude that today dispute settlement arrangements are ‘‘inextricably related’’ to the protection of foreign investors, as they are also related to the protection of rights of traders under treaties of commerce.14Id.
Despite applying the MFN clause to the dispute resolution provisions, the tribunal went on to add that “as a matter of principle, the beneficiary of the clause should not be able to override public policy considerations that the contracting parties might have envisaged as fundamental conditions for their acceptance of the agreement in question.”15Maffezini, supra note 1, para 62. It listed four public policy considerations as an indicative, non-exhaustive list. They included the following: (a) whether one contracting party has conditioned its consent to arbitration on the exhaustion of local remedies, (b) whether the parties have agreed to a dispute settlement mechanism involving a fork in the road provision, (c) whether the agreement provides for a particular arbitration forum which cannot be changed by invoking the clause and (d) whether the parties have agreed to an institutionalized system of arbitration that incorporates precise rules of procedure, from which they cannot be derogated.16Maffezini, supra note 1, para 63. As a result, although Maffezini opened the door for the broad interpretation of MFN clauses, it also improperly opened it to limitation by considerations beyond than the plain meaning of the clause.
4. The Consent Frontier and Garanti Koza v. Turkmenistan
Even while reading a clause according to its plain and ordinary meaning, the analysis invariably touches upon the issue of State consent and the diverging arbitral perspectives regarding the minimum features required for a State to expressly consent to arbitration. This is because even the most explicit wording in the MFN provision must coexist with several parallel and mandatory rules regarding valid State consent which simply cannot be contracted around by the BIT parties. Even if a dispute is clearly covered by the parties’ consent to arbitration, access to arbitration may be subject to additional conditions, including exhaustion of local remedies, attempts at amicable settlement and additional written agreements. Where an MFN clause does not apply, these preconditions place a bar to the State’s consent to arbitration until they are fulfilled. The question which remains to be answered is this – Can a properly-constructed MFN clause displace any BIT limitations, where the plain meaning interpretation permits a complete application of the MFN clause, even to the dispute resolution clause?
It has often been argued that the host State’s consent to arbitration should be construed restrictively because of the limitations placed upon State sovereignty. After the Maffezini decision, many other arbitral tribunals faced the specific question of whether consent to arbitration could be based on the application of MFN clauses17Three other cases involving the effect of MFN clauses are: Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (May 29, 2003); Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction (Aug. 3, 2005); Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction (Feb. 8, 2005) (“Plama”). and until the decision in Garanti-Koza v. Turkmenistan, the answer was invariably in the negative. For example, in the Plama v. Bulgaria arbitration,18Plama, supra note 25. the tribunal concluded that the relevant MFN clause:
cannot be interpreted as providing consent to submit a dispute . . . to ICSID arbitration and that the Claimant cannot rely on dispute settlement provisions in other BITs to which Bulgaria is a contracting Party in the present case.19Plama, supra note 25, para. 227.
Therefore, while the Maffezini decision enabled investors to invoke the MFN clause of the applicable investment treaty and import favorable procedural clauses of other investment treaties, MFN clauses were invoked only to bypass less-important procedural hurdles, such as a waiting period to bring cases to arbitration.20Maffezini, supra note 1. Garanti-Koza greatly expanded the reach of MFN clauses into territory that was forbidden both by Maffezini and Plama, by reading the dispute resolution clause broadly enough to permit consent to be imported from another treaty.
The Garanti-Koza arbitration concerned a limited liability company incorporated in the United Kingdom, which filed a request for arbitration with the International Centre for Settlement of Investment Disputes (“ICSID”) under the UK-Turkmenistan BIT, alleging that Turkmenistan’s modifications of highway construction contracts and its attempts to seize assets constituted breach of the BIT. The Respondent relied on the fact that, although the dispute resolution provision in the base treaty provided for ICSID arbitration as a potential option, both parties needed to agree before the dispute could be referred to ICSID. The clause required that, if four months passed without agreement as to the dispute resolution forum, only then “shall [the dispute] be submitted to arbitration under [UNCITRAL Rules].” As a result, the Respondent objected to the jurisdiction of the ICSID tribunal on the grounds that there was no consent to ICSID arbitration under the UK-Turkmenistan BIT,21Garanti-Koza, supra note 2, para. 7. and that consent to ICSID arbitration cannot be “created by operation of the most favored nation clause of the UK-Turkmenistan BIT.”22Garanti-Koza, supra note 2, para. 14. The Claimant argued that the dispute resolution provision in the base treaty can be replaced with the more favorable dispute resolution clause in the Switzerland-Turkmenistan BIT, which contains a menu of arbitration options that does not require further agreement.23Id. The Tribunal employed a two-step test. First, it asked whether this particular MFN clause is broad enough to encompass importing a provision of a dispute resolution clause from another BIT. Second, it asked whether that provision can be considered more favorable than that in the base treaty. The Tribunal concluded that consent can be imported through the MFN clause and it confirmed its jurisdiction.
The Tribunal “[ventured] into a fiercely contested non-man’s land in international law”24Garanti-Koza, supra note 2, para. 40. when it considered whether it can use an MFN clause to import consent to arbitration. It engaged in a two-step analysis. In the first step, it asked whether the MFN clause can be used to “import” a State’s consent to a different arbitration system from another treaty.25Garanti-Koza, supra note 2, para. 70. It noted that although consent to jurisdiction is a fundamental requirement in investment arbitration,26Id. and although Article 25 of the ICSID Convention requires express “consent in writing,”27Garanti-Koza, supra note 2, para. 24. nevertheless, a dispute resolution provision cannot be interpreted differently than the other treaty provisions.28Garanti-Koza, supra note 2, para. 22. The job of the tribunal was made easier in that the UK-Turkmenistan MFN clause expressly provided for application to dispute resolution clauses.29Id. Nonetheless, the tribunal was faced with the choice of either looking only at the wording of the MFN clause, which on its plain meaning allowed for its application to dispute resolution in the same way that a clause applying to “all matters” could be said to do, or to consider different modes of interpretation. The Plama line of cases denied the extension of MFN clauses to dispute resolution provisions where it touched upon the State’s consent. Even Maffezini explicitly excluded the applicability of MFN clauses “in order to refer the dispute to a different system of arbitration.”30Maffezini, supra note 1, para. 63. Nonetheless, the tribunal held that, in its plain and ordinary meaning, the MFN clause works to “effectively [replace] Article 8(2) of the UK-Turkmenistan BIT with Article 8(2) of the Switzerland-Turkmenistan BIT, which requires no such case-specific consent.”31Garanti-Koza, supra note 2, para. 74. In other words, it imported the part of the clause giving the Claimant “choice between ICSID Arbitration and UNCITRAL Arbitration.”32Garanti-Koza, supra note 2, para. 75. In the second step, after establishing that the provision can be replaced in theory, it considered whether the UK-Turkmenistan BIT provided less favorable treatment than the Switzerland-Turkmenistan BIT. Interestingly, it held that, although it is impossible to establish that UNCITRAL Arbitration is less favorable than ICSID Arbitration, giving the Claimant a menu of options rather than only one option is more favorable.33Garanti-Koza, supra note 2, paras. 89–95. In conclusion, the Garanti-Koza tribunal applied a similar plain-reading analysis as may be applied to other clauses of the BIT, first asking about the scope of the MFN clause and then determining whether the other BIT is more favorable.
Two conclusions can be drawn from this related to the trajectory of the Maffezini line of cases. The first is not only an express rejection of the public policy concerns enunciated in Maffezini, but the adoption of a simple, plain meaning interpretation of the applicability of an MFN clause, even in a vanguard arbitration. The second is that the interpretation of MFN clauses with regard to dispute resolution clauses looks the same as it would in the context of a more classic substantive provision, demonstrating that the lines between the two are blurring and that complexity is being replaced with much-needed simplicity.
5. What Are The New Frontiers?
Given these changes, where are the new frontiers which Garanti-Koza left unaddressed the MFN clause debate, and where should the debate go next? The Garanti-Koza decision broke new ground when it imported consent to ICSID arbitration through an MFN clause. Tribunals now face uncharted territory when it comes to the application of MFN clauses to dispute resolution clauses. There are three particular frontiers where new cases may arise to answer questions that were left unanswered by the Garanti-Koza tribunal.
5.1. Can Consent Still Be Imported Where An MFN Clause Does Not Expressly Include Dispute Settlement Provisions Within Its Scope?
The primary question left unresolved by Garanti-Koza is whether consent can still be imported in this manner where the MFN clause does not expressly state that it applies to dispute resolution mechanisms. Professor Stern,34Id. quoted by the tribunal, considers that in principle, “an MFN clause cannot import . . . a dispute settlement mechanism from a third party BIT into the BIT which is the basic treaty applicable to the dispute.”35Garanti-Koza, supra note 2, para. 45. However, she explicitly carved out an exception , stating that “it is quite evident… [that] an MFN clause expressly [includes] the dispute settlement procedures.”36Impregilo S.p.A. v. Argentine Republic, ICSID Case No. ARB/07/17, Concurring and Dissenting Opinion of Professor Brigitte Stern, paras. 17–18 (quoted in Garanti-Koza, supra note 2, para. 45). Beyond this citation, the tribunal declined to analyse this idea further, since in the Garanti-Koza case, the MFN clause clearly fell within this caveat.37Garanti-Koza, supra note 2, para. 46.
As a matter of plain interpretation theory, if asked whether an express inclusion of dispute resolution clauses into the MFN clause is the only path for consent to be incorporated, the answer must certainly be no. At the first stage, the task before a tribunal is to determine, by plain and ordinary wording, and in light of the objective of the treaty, whether the scope of the MFN clause extends to dispute resolution clauses. This can be achieved by express inclusion, but it can similarly be achieved by other wording of the MFN clause that is broad enough to encompass dispute resolution, such as the “all matters” language in Maffezini. Where the inclusion is express, as in Garanti-Koza, the task before the tribunal at this first step is simplified if they need not engage in a detailed interpretation of a clause that clearly applied to dispute resolution, but it should otherwise have no bearing on what the MFN clause can and cannot import.
5.2. Can New Rights Be Created Through An MFN Clause?
The second open question left by the Garanti-Koza tribunal is whether rights that did not previously exist under the basic treaty can be created by operation of an MFN clause. The tribunal seemed to hold that this was not entirely the case in Garanti, since ICSID arbitration was mentioned in the base treaty and its job in importing consent consisted merely of circumventing the requirements that were placed on the access to that option.38Garanti-Koza, supra note 2, para. 49. This can be seen as similar to where the requirement of a waiting period is waived, as was the case in Maffezini. In other words, the base consent was already there; the tribunal only removed the artificial fence surrounding its access. Therefore, after posing the question whether an MFN clause can create rights,39Garanti-Koza, supra note 2, para. 48. the tribunal concluded that it is unnecessary for it to consider it in the context of this case because the MFN clause frames the question in terms of “treatment” and not of “rights.”40Garanti-Koza, supra note 2, para. 49. It is beyond the scope of this paper to decipher what exactly the tribunal meant by this statement, but this does leave open the question of whether, in a case where ICSID or another method of arbitration was not expressly mentioned in the base treaty, the method could be imported from a third party BIT.
In principle, there should be no limitations on creating rights that are additional to those existing in the basic treaty. The very purpose of an MFN clause is to make certain that no other nation obtains more favourable treatment. In the words of Professor Schreuer, an MFN clause:
is intended to endow its beneficiary with rights that are additional to the rights contained in the basic treaty. The meaning of an MFN clause is that whoever is entitled to rely on it be granted rights accruing from a third party treated even if these rights clearly go beyond the basic treaty.41
Christoph Schreuer et al., The ICSID Convention – A Commentary, 248 (2d ed., 2009) (cited in Garanti-Koza, supra note 2, para. 48).
In this case, the only matter that the tribunal circumvented was stating plainly that they were importing a right that was not there under the base treaty from a third-party treaty. The base treaty mentioned ICSID arbitration, but it made it a requirement to have the agreement of both Parties to utilise it; the default arbitration was one under UNCITRAL Rules. Since there was no agreement, the consent in the base treaty was not perfected and therefore it cannot be said that a right to ICSID arbitration existed in any meaningful way under the UK-Turkmenistan BIT. This is not a situation where the Claimant merely needs to wait a stated period before exercising an existing right. Under the dispute resolution clause in the base BIT, ICSID arbitration was wholly unavailable absent further agreement, and given that the Respondent was not willing to agree, it cannot be credibly claimed that a right existed which was impossible to exercise.
5.3. Are tribunals moving towards uniform interpretation rules for the applicability of MFN clauses to substantive and dispute resolution provisions?
This is the big, open question that lingers every time a case is decided regarding the applicability of MFN clauses to dispute resolution clauses. The treatment of the dispute resolution provision in Garanti-Koza mirrors the same treatment that would have been given to a substantive provision. First, on its plain and ordinary meaning, the tribunal determines whether the scope of the MFN clause extends to the matter at hand. Second, the treatment in the base and the third party treaty is set side by side and the tribunal determines whether the treatment in the third party treaty is more favorable. This seems to indicate a shift, since Maffezini and Plama, to treat dispute resolution and other clauses in a similar manner. In Plama, the tribunal was not satisfied with applying the simple provisions of VCLT Articles 31 and 32, and it heightened the standard to bring dispute resolution clauses within the scope of an MFN clause, moving from the “plain and ordinary meaning” test to a “clear and unambiguous application” test.42Plama, supra note 26, para. 155. In other words, it was not enough for the MFN clause to simply refer to “all matters,” as it did in Maffezini – the extension of the MFN clause’s scope to dispute resolution had to be clearer. “All matters” was good enough for substantive provisions of the BIT, but not for the dispute resolution clause. This fails to give effect to VCLT Articles 31 and 32 and is thus an improper way to interpret MFN clauses.
An additional related question is what role, if any, should public policy considerations stated in Maffezini play in the application of MFN clauses to dispute resolution provisions. One of the public policy considerations listed in Maffezini, namely the prohibition against circumventing a particular arbitration forum, is directly violated on the facts of Garanti-Koza. Although this was raised as an argument by the Respondent, the tribunal in Garanti-Koza refused to give the public policy consideration from Maffezini much mind despite relying on the case for its main argument to build a broad interpretation of the MFN clause. This seems to indicate that, although the reasoning as to the applicability of MFN clauses to dispute resolution in Maffezini continues to influence tribunals, the public policy considerations that the tribunal tacked on at the end no longer influence the tribunals. This is not surprising. None of the four considerations were based on any previous state or tribunal practice nor, more importantly, can they be deduced from anything in the wording of the Treaty. They are therefore easily discarded as a mere distraction on an already-difficult path.
MFN clauses must be used properly and their potential must be given full effect by tribunals. To achieve this, MFN clauses can be invoked to cherry-pick and import more favorable dispute settlement provisions of third party treaties under the VCLT. Given the uncertainty surrounding this area of law, States should clarify their position on the applicability of the MFN clauses they sign to dispute resolution clauses. Until then, to continue to encourage and increase the flow of foreign investment, continued favorable treatment towards investors is necessary. The MFN clause should therefore be treated as a valuable tool that ensures that investors receive the highest available level of treatment, whether substantive or procedural. Until States clarify their positions, the wording of the MFN clauses should be given effect in its proper and ordinary meaning, and arbitrators should continue to use the VCLT to provide claimants access to more favorable dispute settlement provisions in third-party treaties where permitted under the MFN clause.
Maintaining a clear and ordinary interpretation of the MFN clause becomes especially important when, as in Garanti-Koza, the tribunal finds itself at an international legal frontier. The various public policy considerations and special interpretive rules which tribunals have invented over the years to rein in MFN clauses has led to a proliferation of rules which effectively fail to give effect to the VCLT. A clear, two-step approach, such as the one presented in Garanti, is the ideal way for a tribunal to continue to find the right path in the dark no-man’s land of international law, where no tribunal has shone a light before.
References [ + ]
|01.||↵||Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision of the Tribunal on Objections to Jurisdiction (Jan. 25, 2000) (“Maffezini”).|
|02.||↵||Garanti Koza LLP v. Turkmenistan, ICSID Case No. ARB/11/20, Decision on the Objection to Jurisdiction for Lack of Consent (July 3, 2013) (“Garanti-Koza”).|
|03.||↵||Vienna Convention on the Law of Treaties, arts. 31–32, May 23, 1969, 1115 U.N.T.S. 331 (“VCLT”).|
|04.||↵||VCLT art. 31, supra note 12. (emphasis added)|
|05.||↵||VCLT art. 32, supra note 13.|
|07.||↵||Case Concerning Rights of Nationals of the United States in Morocco (Fr. v. U.S.), Judgment, 1952 I.C.J. 176, 191–92 (Aug. 27).|
|08.||↵||Maffezini, supra note 1, para. 57.|
|09.||↵||Martins Paparinskis, MFN Clauses and International Dispute Settlement: Moving Beyond Maffezini and Plama? 26(2) |
|10.||↵||Maffezini, supra note 1, para 38.|
|12.||↵||Maffezini, supra note 1, para 38. (emphasis added)|
|13.||↵||Maffezini, supra note 1, para 54.|
|15.||↵||Maffezini, supra note 1, para 62.|
|16.||↵||Maffezini, supra note 1, para 63.|
|17.||↵||Three other cases involving the effect of MFN clauses are: Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award (May 29, 2003); Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction (Aug. 3, 2005); Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction (Feb. 8, 2005) (“Plama”).|
|18.||↵||Plama, supra note 25.|
|19.||↵||Plama, supra note 25, para. 227.|
|20.||↵||Maffezini, supra note 1.|
|21.||↵||Garanti-Koza, supra note 2, para. 7.|
|22.||↵||Garanti-Koza, supra note 2, para. 14.|
|24.||↵||Garanti-Koza, supra note 2, para. 40.|
|25.||↵||Garanti-Koza, supra note 2, para. 70.|
|27.||↵||Garanti-Koza, supra note 2, para. 24.|
|28.||↵||Garanti-Koza, supra note 2, para. 22.|
|30.||↵||Maffezini, supra note 1, para. 63.|
|31.||↵||Garanti-Koza, supra note 2, para. 74.|
|32.||↵||Garanti-Koza, supra note 2, para. 75.|
|33.||↵||Garanti-Koza, supra note 2, paras. 89–95.|
|35.||↵||Garanti-Koza, supra note 2, para. 45.|
|36.||↵||Impregilo S.p.A. v. Argentine Republic, ICSID Case No. ARB/07/17, Concurring and Dissenting Opinion of Professor Brigitte Stern, paras. 17–18 (quoted in Garanti-Koza, supra note 2, para. 45).|
|37.||↵||Garanti-Koza, supra note 2, para. 46.|
|38.||↵||Garanti-Koza, supra note 2, para. 49.|
|39.||↵||Garanti-Koza, supra note 2, para. 48.|
|40.||↵||Garanti-Koza, supra note 2, para. 49.|
|42.||↵||Plama, supra note 26, para. 155.|