Handle with care: Umbrella clauses and MFN treatment in investment arbitration

Tarcisio Gazzini, Attila Tanzi

Research output: Contribution to journalArticle

1 Citation (Scopus)

Abstract

A large number of BITs concluded by France contain quite a peculiar clause (for instance Article 10 BIT with Argentina), which has been recently the object of questionable interpretations and applications in EDF International S.A. et al. v. Argentina and Mr. Franck Charles Arif v. Moldova. Both tribunals allowed the claimants to benefit, through the MNF clause, from umbrella clauses contained in BITs with third States. It is argued that neither tribunal has rigorously interpreted the relevant provisions in the basic treaty, nor ensured compliance with the ejusdem generis principle. The legal uncertainty that surrounds these provisions is detrimental for foreign investors and States alike. Concerned States should consider taking the measures necessary to clarify, jointly or individually, the content of these provisions and of the obligations stemming from them.
Original languageEnglish
Pages (from-to)978 – 994
Number of pages17
JournalJournal of World Investment and Trade
Volume14
Issue number6
DOIs
Publication statusPublished - 2013

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