Public Law Studies Quarterly

The Application of the Most-Favored-Nation Clause Regarding Jurisdiction in ICSID Awards of 2016 and 2023

Document Type : Article

Authors

Mohammad Razavirad 1
Sareh Nazemi 2

1 Assistant Prof., Department of Law, Faculty of Humanitarian Sciences, Qaemshahr Branch, Islamic ‎Azad University, Qaemshahr, Iran‎

2 Ph.D. Student in International Trade and Investment Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran

https://doi.org/10.22059/jplsq.2024.373787.3500
Abstract
The acceptance of the applicability of the most-favored-nation clause regarding dispute resolution methods by the arbitrators in the Mavzini case has led to extensive legal debates, resulting in conflicting awards by arbitration bodies. The 2015 report of the International Law Commission on this clause reflects the comprehensive efforts of this institution to organize the governing rules through a thorough examination of the legal interpretations made by arbitration bodies. This paper aims to analyze two recent ICSID awards to address the question of how effectively the Commission's report has contributed to resolving legal disagreements and preventing conflicting awards in this forum. The present research is conducted using a descriptive-analytical method and involves the study of international documents and awards. The investigation began with the perspective that the Commission's report, given the status of this institution and the extensive study conducted, could encourage arbitration bodies to reach consensus on the main contentious issues. However, the findings indicate that arbitrators in dispute resolution bodies continue to make decisions based on personal interpretations of the mentioned cases, and disagreements and the issuance of conflicting awards persist significantly.
 

Keywords

ICSID
arbitration
most-favoured-nation clause
International Law Commission
Subjects

  1.  English

    1. A) Book
    2. Wang, A. (2022). The Interpretation and Application of the Most-Favored-Nation Clause in Investment Arbitration. World Trade Institute Advanced Studies, 12.

     

    1. B) Article
    2. Gaillard, E. (2005). Establishing Jurisdiction through a Most-Favored-Nation Clause. 233(105).

     

    1. C) Dissertation
    2. Patrik Nils, J. (2011). Most Favoured Nation Treatment Application in International Investment Arbitration. Master's Thesis, University of Oslo.

     

    1. D) Cases
    2. Ambatielios Claim (Greece v. United Kingdom of Great Britain and Northern Ireland). 6 March 1956.
    3. Case concerning rights of nationals of the United States of America in Morocco (France v. United States of America), Judgment of August 27th, 1952.
    4. Fishers Jurisdiction Case (Spain v. Canada) Jurisdiction of Court. 4 December 1998.
    5. AsiaPhos Limited and Norwest Chemicals Pte Limited v. People’s Republic of China. Case No: ADM/21/1.16 February 2023.
    6. Emilio Agustin Maffezini v. Kingdom of Spain, Decision of the Tribunal on Objections to Jurisdiction. Case No: ARB 97/7. 25 January 2000.
    7. Impregilo S.p.A. v Argentine Republic (i).Concurring and Dissenting Opinion of Professor Brigitte Stern. Case No. ARB/07/17. 21 June 2011.
    8. Plama Consortium Limited v. Republic of Bulgaria, Decision on Jurisdiction. Case No. ARB/03/24. 8 February 2005.
    9. Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, Case No. ARB/00/4. 31 july 2001
    10. UP (formerly Le Chèque Déjeuner) and C.D Holding Internationale v. Hungary. Case No. ARB/13/35. 3 March 2016

     

    1. E) Documents:
    2. ILC (1978). Draft Articles on Most-Favoured-Nation Clauses.
    3. ILC (2015).Most-Favoured-Nation clause Final Report of the Study Group on the Most-Favoured-Nation clause.
    4. UNCTAD (2010). Series on Issues in International Investment Agreements II- Most-Favoured-Nation Treatment

     

    References In Persian:

    1. A) Books
    2. Askari, P, (2015). Foreign Investment Law in International Arbitration Procedure. Tehran: Shahr Danesh Law Institue (In Persian).
    3. Lonfeld, Andreas F. (2017). International Economic Law. Translate by Mohammad Habibi Majandeh, Tehran: Jangal (In Persian).
    4. Phalsaphi, H. (2004). International Law of Treaties.Tehran: Nashrenow (In Persian).
    5. Wallace, Rebecca M. M (2004). International Law. Translation by Seyyed Ghasem Zamani, Mahnaz Bahramloo. Tehran: Shahr Danesh Law Institue (In Persian).

     

    1. B) Articles
    2. Habibi Mojandeh, M., Kamyar Raad, S. (2018). Law-Making by the International Court of Justice through Dynamic Interpretation. International Law Review, DOI:10.22066/CILAMAG.2018.31683. 5-55 (In Persian).
    3. Habibzadeh, Tawakkul (2013). Bilateral Investment Treaties. Law Journal, (30), 123- 253 (In Persian).
    4. Mirabbasi, S, B,, Qasimzadeh Maslabh, M. (2018). Feasibility of Applying the Rule of "Most Favour Nation" in Resolving International Investment Disputes. Tehran University, Public Law Studies Quarterly. DOI: 10.22059/jplsq.2018.252063.1670. 577-595 (In Persian).
    5. Mohammadi Dinani, P. (2009). The Most Favour Nation and the Arbitration of International Investment Disputes. Journal of Legal Research,(1) (Special Letter), 9-61 (In Persian).
Public Law Studies Quarterly
Volume 55, Issue 3 - Serial Number 43
Autumn 2025
Autumn 2025
Pages 1931-1953

  • Receive Date 12 March 2024
  • Revise Date 07 October 2024
  • Accept Date 15 September 2024

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