MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom”
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,...
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| Format: | Article |
| Language: | English |
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Cambridge University Press
2018-01-01
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| Series: | AJIL Unbound |
| Online Access: | https://www.cambridge.org/core/product/identifier/S2398772318000284/type/journal_article |
| _version_ | 1811157414572982272 |
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| author | Martins Paparinskis |
| author_facet | Martins Paparinskis |
| author_sort | Martins Paparinskis |
| collection | DOAJ |
| description | 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 the Vienna Convention on the Law of Treaties (VCLT), are meant to be flexibly 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. |
| first_indexed | 2024-04-10T05:05:53Z |
| format | Article |
| id | doaj.art-56c9f77c0fda4285abd9628675bf9881 |
| institution | Directory Open Access Journal |
| issn | 2398-7723 |
| language | English |
| last_indexed | 2024-04-10T05:05:53Z |
| publishDate | 2018-01-01 |
| publisher | Cambridge University Press |
| record_format | Article |
| series | AJIL Unbound |
| spelling | doaj.art-56c9f77c0fda4285abd9628675bf98812023-03-09T12:27:07ZengCambridge University PressAJIL Unbound2398-77232018-01-01112495410.1017/aju.2018.28MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom”Martins Paparinskis0Reader in Public International Law, University College London.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 the Vienna Convention on the Law of Treaties (VCLT), are meant to be flexibly 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.https://www.cambridge.org/core/product/identifier/S2398772318000284/type/journal_article |
| spellingShingle | Martins Paparinskis MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom” AJIL Unbound |
| title | MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom” |
| title_full | MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom” |
| title_fullStr | MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom” |
| title_full_unstemmed | MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom” |
| title_short | MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom” |
| title_sort | mfn clauses and substantive treatment a law of treaties perspective of the conventional wisdom |
| url | https://www.cambridge.org/core/product/identifier/S2398772318000284/type/journal_article |
| work_keys_str_mv | AT martinspaparinskis mfnclausesandsubstantivetreatmentalawoftreatiesperspectiveoftheconventionalwisdom |