Impregilo SpA v Argentine Republic1 and Hochtief AG v The Argentine Republic,2: Making Sense of Dissents: The Jurisprudence Inconstante of the MFN Clause
Bibliographic record
Abstract
The interplay of a bilateral investment treaty’s (BIT) dispute settlement provision with a most-favoured nation (MFN) clause has proven to be a fertile ground for vigorous debate. Indeed, in the field of investor–State arbitration, it may be difficult to conceive an issue as intellectually stimulating and of such practical significance that remains difficult to synthesize. This seems especially true after the most recent awards addressing the issue, two of which were accompanied by strong dissents. Before turning to these recent decisions, it is worth recalling what was (or was not) settled by their antecedents. At the 2010 International Bar Association Annual Conference in Vancouver, Juan Fernández-Armesto spoke of a ‘long night’ (between 1960 and 2000)—during which parties simply ignored the MFN clause—interrupted by ‘three flashes’: Emilio Augustín Maffezini v The Kingdom of Spain,5 Plama Consortium Limited v Republic of Bulgaria6 and RosInvestCo UK Ltd v The Russian Federation.7 In Maffezini, the first ‘flash’, a BIT Tribunal ruled for the first time that an MFN clause could apply to a dispute settlement provision, and allowed the investor to circumvent a requirement that it litigate before the host State’s domestic courts for 18 months before instituting arbitration against the State. Many tribunals, with the notable exception of Wintershall Aktiengesellschaft v Argentine Republic,8 followed suit.9 At the same time, the Maffezini Tribunal warned of ‘disruptive treaty-shopping’10 and observed that the effect of MFN clauses should be limited by certain ‘fundamental’ ‘public policy considerations’ underlying State consent,11 such as the agreement to a particular forum, the requirement to exhaust local remedies, the agreement to a fork-in-the-road provision and the agreement to a highly institutionalized and very precise procedural mechanism to conduct arbitration such as under NAFTA.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.005 | 0.007 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.001 |
| Science and technology studies | 0.008 | 0.006 |
| Scholarly communication | 0.005 | 0.003 |
| Open science | 0.001 | 0.003 |
| Research integrity | 0.010 | 0.009 |
| Insufficient payload (model declined to judge) | 0.005 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".