Shopping for a better deal: the use of MFN clauses to get ‘better’ fair and equitable treatment protection

Abstract

The present article analyses the following question: can a most favoured nation (MFN) clause contained in an investment treaty that includes a fair and equitable treatment (FET) standard clause be used by an investor to claim the benefit of a better FET protection found in other treaties entered into by the host state? Tribunals have so far all accepted the importation of better FET protection through MFN clauses. The question is important in light of the fact that new treaties are increasingly containing FET clauses with a restrictive scope.