MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the "Conventional Wisdom". (30th April 2018)

• Record Type: Journal Article
• Authors: Paparinskis, Martins
• Is Part Of: AJIL unbound. Volume 112( 2018)
• Page Start: 49
• Page End: 54
• Publication Date: 2018-04-30
• Subjects: International law -- Periodicals; 341.05
• DOI: 10.1017/aju.2018.28
• Languages: English
• ISSNs: 2398-7723

Abstract

Abstract : On the big questions, Simon Batifort and J. Benton Heath are plainly right. Dogmatic presumptions about the necessary effect of particular clauses and woolly notions of systemic teleology may distract the interpreter from the task of finding the meaning that represents the intentions of the parties, best articulated in the specific terms chosen. Customary rules on treaty interpretation, reflected in Articles 31 and 32 of theVienna Convention on the Law of Treaties (VCLT), are meant to beflexibly adapted to the case in hand. But in applying their insight to the small print of the interpretative question, Batifort and Heath are less persuasive. Can most favored nation (MFN) clauses be generally relied upon to, as they put it, "import" substantive standards of treatment of investment protection law? The authors are critical of the apparent consensus in favor of an affirmative answer—they call it "conventional wisdom"—and in this regard seem to me to be significantly overstating their case.