투자분쟁과 최혜국 대우의 확장적 원용론 — 조약해석원칙을 중심으로 —

This article deals with an extensive importation of MFN clauses to dispute settlement provisions in the third party investment treaty, which has reignited by the Maffezini arbitral awards in 2000. It analyzed the MFN extension issue by three aspects of the issue: reviewing the wording of particular MFN clause, reviewing the relevant investment arbitral awards, and identifying interpretive issues of the MFN clauses undertaken on the basis of the rules for the interpretation of treaties as set out in the VCLT. First, there appears several types of wording in MFN clauses, ranging from ‘all matters’ governed by the treaty, and to providing simply for ‘treatment no less favourable’ with or without qualifications. Second, it has been widely recognized by investment tribunals that the question of the scope of MFN provisions in any given bilateral investment treaty is a matter of interpretation of that particular treaty. The central interpretative issue in respect of the MFN clauses relates to the scope of the clause and the application of the ejusdem generis principle. That is, the scope and nature of the benefit that can be obtained under an MFN provision depends on the interpretation of the MFN provision itself. In conclusion, keeping the priority of the Parties’ common intention in mind, it emphasizes that an explicit language can ensure that an MFN provision does or does not apply to dispute settlement provisions, and interpretive efforts of materializing the Parties’ common intention upon a case-by-case basis.