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Abstract
A Most–Favored Nation Clause is a provision in a treaty under which a state agree to accord to the other contracting partner treatment that is no less favorable than which it accords to other or third states.
A Most–Favored Nation treatment clause is not only a treaty clause, but also a source of international obligations other than those included in the basic treaty whose contents can not be totally foreseen when the basic treaty is concluded.
In any case, the functioning of the MFN treatment presupposes that the ejusdem generis principle is satisfied. This fact has given rise to controversial issues within investment cases and the panels of the WTO.
In the contemporary economic relations among states, MFN clause continues to be a critical factor in international economic relations among member states. The continuing relevance of the MFN clause could be viewed in two phases: In the first phase, the growth of bilateral investment promotion and protection agreements (BITs) in 1990s with the inclusion of MFN clause which ensured international minimum standards of treatment for foreign investors and their investments has been resulted to the MFN explosion.
In the second phase, the emergence of free trade agreements and comprehensive economic. Partnership agreements which provide for the liberalization of trade in goods and services have been MFN a new lease of life.
A review of the role of the MFN clause in the context of these new economic agreements merits closer study from a legal perspective.
The fundamental question a bout MFN clauses is how should MFN clauses be interpreted while this may appear to be a narrow question , in reality it is a broad question involving the nature and context of obligations under taken by states under the ambit of an MFN clause , role and function of MFN clause and of their relation ship to the principle of non-discrimination in international law and exceptions to the application of the clause and is whether anything with the progressive development of international law and its codification can usefully do .
In this study first, the MFN clause has been analyzed as an especial institution irrespective in the context (as a treaty provision) and identification of rules governed on the MFN clauses.
second , the MFN clause being dealt with context of the WTO and in the context of international investment law , the purpose of this study , is to provide guidance to states in their negotiation of agreements with MFN clause and to arbitrators interpreting agreements by an exhaustive analysis of the development of the nature scope and underlying rationale for MFN clauses the existing MFN jurisprudence in the various contemporary areas , variety and uses of MFN clauses in contemporary practice and how MFN clauses have been interpreted and how they should be interpreted.
Also some clues to determine whether the justem generis principle is met can be deduced from the awards of the ICSID tribunals.
the results of this study shows that progressive development and possibly codifications specially in the field of international investment law seems to be more probable .
Keywords: Most-Favored Nation Clause, Most-Favored Nation Treatment, Most-Favored Nation Treatment Standard, Most-Favored Nation Principle, Granting State, Beneficiary State, Basic Treaty, Reciprocity Treatment, TRIPS, GATS, GATT1994, Dispute Settlement of International Investment, WTO
– General Assembly Resolutions 25th Session, 24 october 1970, www.un.org/dacuments /ga/res/25/ares 25.htm-83K, visited on 1.9.2009. ↑
– Bilateral investment treaties(BITs) ↑