In the absence of general codification international investment law, the latter developed into a comprehensive system primarily with the assistance of the most-favoured clauses included in virtually every international investment treaty. Such clauses oblige the state to provide the contracting state with at least such favourable treatment and the same rights as are accorded to any other country in the world. Another key feature of international investment law is the ability of investors to initiate the arbitration proceedings against the host country, thus protecting their rights also in the international environment, previously reserved solely for states. In accordance with principle of sovereignty international investment arbitration cannot start without consent of the respondent state. In the wake of the extensive expansion of international investment arbitrage procedures investors often referred to the most-favoured nation clauses to import more favourable provisions from international treaties that the respondent state concluded with third states. Initially, investors primarily imported substantive provisions concerning their rights and in the next step, they tried to import more favourable arbitration clauses, in which the consent of the states to arbitrate was expressed. In this way, investors wanted to get more favourable conditions for initiating arbitration and caused “collision” between the consent of a state to arbitrate and most-favoured nation clause, which is still not successfully resolved by international arbitration tribunals.
This master thesis discusses the relationship between the most-favoured nation clauses and consent of a state to arbitrate and notes that the most-favoured nation clauses and the consent of a state to arbitrate must be interpreted in the same way as other provisions in international treaties. The sufficiently broad most-favoured nation clause may, in accordance with existing rules of international law, affect the scope of the state’s consent to arbitrate and even constitute the basis for the jurisdiction of the arbitral tribunal. First part analyses both concepts, and the theoretical part is followed by a overview of the existing practice of arbitration tribunals regarding the impact of the most-favoured clauses on the provisions on peaceful settlement of the disputes. In the final analysis the thesis highlights rules already drawn up and proposes solutions that could unify the currently deeply divided practice of arbitration tribunals.
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