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International Investment Law: A Changing Landscape

A Companion Volume to International Investment Perspectives

image of International Investment Law: A Changing Landscape

This publication presents four studies which represent recent core work of the OECD Investment Committee. The first study, "Transparency and Third Party Participation in Investor-to-State Dispute Settlement ," aims to enhance understanding of the role of transparency and third party participation in investor-state dispute settlement procedures. It examines the current rules, steps taken to improve transparency, and the perceived advantages as well as the challenges of additional transparency.  Two other studies touch upon two of the most frequently contested provisions in investor-state arbitration. "Fair and Equitable Treatment Standard in International Investment Law" clarifies the concept, based on jurisprudence and state practice. "‘Indirect Expropriation’ and the ‘Right to Regulate’ in International Investment Law" identifies the main criteria found in investment agreements and used by tribunals to articulate the difference between the two concepts.  The final paper looks at most favoured nation treatment.

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Most-Favoured-Nation Treatment in International Investment Law

Most-Favoured-Nation (MFN) treatment is one of the oldest standards of international economic relations. It is central to WTO disciplines and is as well a significant instrument of economic liberalisation in the investment field by spreading more favourable treatment from one investment agreement to another. The wording of MFN clauses varies, however, and their interpretation and application requires a careful analysis, on a case-by-case basis, in accordance with Articles 31 and 32 of the Vienna Convention. The ejusdem generis principle provides that an MFN clause can attract the more favourable treatment available in other treaties only in regard to the “same subject matter”, the “same category of matter”, or the “same class of matter”. Past arbitral findings show, however, that the application of this principle has not always been simple or consistent. The present survey reviews the jurisprudence and invites practitioners to pay particular attention to the formulation of the MFN clauses in investment agreements, taking into account established treaty interpretation rules.

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