A Further Update On Most-Favoured-Nation Treatment—In Search Of A Constant Jurisprudence

Chapter Summary

The most-favoured-nation (MFN) obligation has a long pedigree. Modern free trade agreements (FTAs) invariably contain MFN obligations. Most bilateral investment treaties (BITs) and FTAs with investment disciplines grant MFN treatment to investments and/or investors in host countries. The extension of MFN treatment to different types of economic activity has raised numerous debates about its proper purpose, scope, and application. MFN analysis is more complex in the investment context. Investment agreements have a twofold purpose: to promote foreign investment and to protect foreign investors. The application of MFN in investment cases requires a comparison between investors and their investments accounting for a broad range of factual or legal circumstances that might justify according dissimilar treatment to foreign and third-party investors. This chapter summarizes the main issues raised to date in MFN analysis, to review the most recent cases interpreting MFN, and to suggest some questions that remain for further elaboration.

Keywords: bilateral investment treaties (BITs); foreign investment; foreign investors; free trade agreements (FTAs); most-favoured-nation (MFN)