Emilio Augustín Maffezini v. Kingdom of Spain, ICSID Case No. ARB/97/7

The Argentine claimant in Maffezini sought to avoid the requirement in the Argentina-Spain BIT that disputes first be submitted to a Spanish court and that the claimant wait 18 months after that lawsuit was filed to submit the dispute to arbitration. The claimant argued that the Chile-Spain BIT contained no such requirement and, therefore, Chilean investors in Spain received more favorable treatment to which the claimant was entitled under the MFN clause in the Argentina-Spain BIT. Spain argued that, in extending MFN privileges with respect to “all matters subject to this agreement,” the treaty parties intended to refer only to substantive investment protections, not to dispute resolution procedures provided in the BIT. Based on the broad MFN language in the Argentina-Spain BIT and relying on Ambatielos, the Maffezini tribunal concluded that “there are good reasons to conclude that today dispute settlement arrangements are inextricably related to the protection of foreign investors, as they are also related to the protection of rights of traders under treaties of commerce,” and therefore that dispute resolution procedures from one BIT could be imported into another BIT through its MFN clause.

 

Source: http://wwhttp://www.iilj.org/research/documents/IF201011.Bigge.pdfw.iilj.org/research/documents/IF2010-11.Bigge.pdf