{"id":208,"date":"2016-06-10T10:41:19","date_gmt":"2016-06-10T14:41:19","guid":{"rendered":"http:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/?page_id=208"},"modified":"2016-09-01T18:39:40","modified_gmt":"2016-09-01T22:39:40","slug":"5-4-2-2-ensuring-that-careful-drafting-and-negotiation-are-not-undermined-by-the-import-of-other-investment-treaty-guarantees-through-the-mfn-clause","status":"publish","type":"page","link":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/5-investment-provisions\/5-4-safeguarding-policy-space\/5-4-2-most-favoured-nation-mfn-treatment-and-national-treatment\/5-4-2-2-ensuring-that-careful-drafting-and-negotiation-are-not-undermined-by-the-import-of-other-investment-treaty-guarantees-through-the-mfn-clause\/","title":{"rendered":"5.4.2.2 Ensuring that careful drafting and negotiation are not undermined by the import of other investment treaty guarantees through the MFN clause"},"content":{"rendered":"<p>Many decisions rendered by international arbitral tribunals suggest that an investor whose rights against the host state are governed by one agreement with an MFN clause can search the universe of treaties to which the host state is party, identify more favourable clauses and protections in those other treaties, and use the MFN provision to replace or supplement the protections of the agreement.<sup>25<\/sup> Allowing foreign investors to isolate, extract and import more favourable provisions from other treaties can broaden states\u2019 obligations, undoing what may have been the results of hard-fought negotiations between the host and home country, and nullifying what might have been purposeful limits in the agreement. This is important from an environmental perspective because treaty language has evolved greatly over the past few years in a view to avoid the loss of the space needed to regulate, but that progress can be reversed through the MFN clause if provisions from older treaties are allowed to be imported.<\/p>\n<p>As a reaction, some states have considered adding clarifications or carve-outs to MFN obligations. They have done this in two ways. Some treaties clarify that provisions in other investment agreements do not constitute \u201ctreatment\u201d that could be considered more favourable and in violation of the MFN provision. Other treaties expressly exclude all (past) investment agreements from the scope of MFN.<sup>26<\/sup><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Many decisions rendered by international arbitral tribunals suggest that an investor whose rights against the host state are governed by one agreement with an MFN clause can search the universe of treaties to which the host state is party, identify more favourable clauses and protections in those other treaties, and use the MFN provision to<a class=\"excerpt-read-more\" href=\"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/5-investment-provisions\/5-4-safeguarding-policy-space\/5-4-2-most-favoured-nation-mfn-treatment-and-national-treatment\/5-4-2-2-ensuring-that-careful-drafting-and-negotiation-are-not-undermined-by-the-import-of-other-investment-treaty-guarantees-through-the-mfn-clause\/\" title=\"Read5.4.2.2 Ensuring that careful drafting and negotiation are not undermined by the import of other investment treaty guarantees through the MFN clause\">&#8230; Read more &raquo;<\/a><\/p>\n","protected":false},"author":7,"featured_media":0,"parent":134,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_acf_changed":false,"footnotes":"2"},"class_list":["post-208","page","type-page","status-publish","hentry"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/pages\/208","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/comments?post=208"}],"version-history":[{"count":0,"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/pages\/208\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/pages\/134"}],"wp:attachment":[{"href":"https:\/\/www.iisd.org\/toolkits\/sustainability-toolkit-for-trade-negotiators\/wp-json\/wp\/v2\/media?parent=208"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}