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Aleksandra Dziki - University of Pennsylvania Law School, LLM

International Investment Law Symposium LLM Perspectives Online Publications

A Fiercely Contested No-Man’s Land Of International Arbitration: Consent Arbitration In Bilateral Investment Treaties And The Frontiers Of The Application Of MFN Clauses To Dispute Settlement Provisions

1. Introduction 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…

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