MFN Clauses as Bilateral Commitments to Multilateralism – A Reply to Simon Batifort and J. Benton Heath

The present article comments on Simon Batifort and J. Benton Heath, ‘The New Debate on the Interpretation of MFN Clauses in Investment Treaties: Putting the Brakes on Multilateralization', published in this issue of the American Journal of International Law. It agrees with Batifort and Heath that developments in the drafting of new investment treaties also affect the interpretation of most-favored-nation (MFN) clauses in those agreements. But it rejects the broader argument that these developments, together with the isolated award in İçkale v. Turkmenistan and the position of the States parties on the MFN clause in the North American Free Trade Agreement, should lead to a reevaluation of the interpretation and application of MFN clauses in investment treaties generally. Batifort and Heath's claim for such a reevaluation is not only doctrinally flawed and based on a misrepresentation of the prevailing approach to interpreting MFN clauses in investment arbitration. Much more, it constitutes a politically and ideologically questionable assault on the commitments States made under these clauses to the multilateral structures that have been built over the past decades in international investment law through treaty-making and dispute settlement and that are currently being reformed by States parties to newer treaties