Thethird way to draft a MFN clause is to exclude the dispute resolution clauseexplicitly without a doubt. In this way of drafting, parties may either draft abroad clause or may list the matters to be included as long as they explicitlyexclude the dispute resolution clause. As an example of this is the article 4/3of the Spain-Argentina BIT.
As the article states that “the treatment shall not extendto the privileges which either Party…” The wording of the article 4/3of the Spain-Argentina BIT clearly suggest that the matters listed are not inthe scope of the MFN clause. However, such an article also suggest that thematters are not excluded are actually included vice versa. Accordingly, while analyzingthe Spain-Argentina BIT in the Suez-AWG case, tribunal stated that the disputeresolution clause is not counted among the excluded matters. Therefore the MFNclause covers the dispute resolution clause. A similar view is also accepted bythe Tribunal in the National Grid case NationalGrid PLC. V.
The Argentina Thedifferences between the interpretations of the scope of the MFN clauses createsan ambiguity. One of the interpretation tools to interpret a clause is theinternational practice. However, international practice is not consistent forthis issue. Accordingto the Tribunal, the MFN clause mentioned above does not exclude the disputeresolution clause.
The Tribunal bases its argument on the fact that the word “maintenance” also covers the dispute resolutionprovisions. Since the word “maintenance”refers to the protection of the investment, it also covers the disputeresolution clause. “Neither contracting party shall in its territorysubject investors of the other Contracting Party, as regards their management, maintenance, use, enjoyment ordisposal of their investments, to treatment less favorable than that whichit accords to its own investors or to investors of any third state”Secondly,the MFN clause may be drafted in a way where the matters covered in the clauseare explicitly listed. Thus, if the dispute resolution clause does not takeplace in the list then we may reach to a conclusion that it is excluded. As anexample of this may be found in the NAFTA, article 1103 reads as “each party shall accord to investors ofanother party treatment no less favorable than it accords, in likecircumstances, to investors of any other party or of non-party with respect tothe establishment, acquisition,expansion, management, conduct, operation, and sale or other disposition ofinvestments”. The Plama Tribunal in the case Plama Consortium Ltd.
v. Republic of Bulgaria analyzed thisarticle. In the award, the tribunal accepted that the dispute resolution clausewas intentionally left out from the list, therefore this clause does not extendto the dispute resolution clause. However, in a similar case, tribunal adopteda very different view. In the Suez-AWG case, AWG Group Ltd. v.
The ArgentinaRepublic the tribunal analyzed the UK-Argentina BIT. Article 3(2) of theUK-Argentina BIT, it states that Firstly,a general and a broad wording such as the BIT signed between the Spain andArgentina. This BIT had the MFN clause broadly drafted, “in all matters governed by thisAgreement, such treatment shall be no less favorable than that accorded byeach party to investment made in its territory by investors of a third country”.In Spain-Argentina BIT the word “matter” creates an ambiguity about whetherthe clause covering the substantive or procedural issues. Another example of abroadly drafted MFN clause takes place in the BIT signed between Greece andUnited Kingdom in 1886. In this BIT, the MFN clause stated “allmatters relating to commerce and navigation”. These somewhat broadly drafted MFN clauses were subject todifferent tribunals such as Mafezzini v.
Kingdom of Spain, Gas Natural SDG, SA v. The Argentina Republic, Suez,Sociedad General de Barcelona SA v. The Argentina Republic. Since thedispute resolution provisions are matters in the treaty, these tribunals accepted that the word “matter” covers the disputeresolution provisions. Additionally, the main reason behind signing a BIT is toprotect the investment, so excluding the dispute resolution clause from thescope of a broadly drafted MFN clause is going to be against purpose of thetreaty. Therefore, broadly worded MFN clauses are accepted as they also coverthe dispute resolution clause. It is also stated that if a party is willing toexclude the dispute resolution clause, then it should be written explicitlywhile drafting the treaty.
However, this interpretation also suggests that if aMFN clause is not broadly drafted, in other words, does not articulatestatements such as “all matters” then itdoes not cover the dispute resolution clause. Tribunals accept this opinion. a- Draftingof the MFN clauseThereare different opinions about the scope and the interpretation of the MFNclause. At this point, the drafting of the clause plays an important role.
Parties to a treaty may choose to draft a broad or a narrow MFN clause. There arethree wording types of MFN clauses mostly seen in BIT’s. 1- Understandingthe Scope of the MFN Clause in BIT’s through relevant cases