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Procedural Effects of the Most Favourable NAtion Clause in BIT on ICSID Arbitration

This article considers procedural effects of most favoured nation clauses in bilateral investment treaties regarding the jurisdiction of the International Centre for Settlement of Investment Disputes between States and Nationals of Other States. Decision on jurisdiction of ICSID’ s tribunal in Maffezini v. Spain on the applicability of eiusdem generis principle to the procedural matters is of the utmost importance for the future practice of this international arbitral body. Although certain departure from such practice can be noticed (Plama v. Bulgaria) it is obvious that ICSID’ s tribunals frequently decide in favorem iurisdictionis. BITs to which Croatia is a party do not strictly follow any of the most used models of MFN clauses and such practice can lead to the uncertainty regarding the procedural effects of such clauses. More importantly – Croatian BITs do not have exclusions of the applicability of MFN clauses in cases of favorable position granted to third-states nationals in relation to envisaged accession to European Union.

Procedural effects; most favoured nation clause; bilateral traties; stimulation and protection of investment on ICSID arbitration

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