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It has previously been noted that most favored nation (MFN) clauses are yet to yield a jurisprudence constante on their meaning and scope in investment arbitration, in particular as concerns the question of whether the beneficiary of a most favored nation clause may invoke the more favorable dispute settlement provisions of a third-party treaty (“Establishing Jurisdiction Through a Most-Favored-Nation Clause,” NYLJ, June 2, 2005). More than four years later, there is no greater consensus on this issue, as demonstrated by the recent decisions in Wintershall v. Argentina (Award of Dec. 8, 2008, ITA Web site) and Renta 4 v. Russia (Award on Preliminary Objections of March 20, 2009, available on the ITA Web site). While this lack of consensus may be explained in part by textual differences in the clauses themselves, it is evident that two divergent approaches to the question of whether an MFN clause applies to dispute settlement provisions have emerged in arbitral case law. These divergent approaches raise a number of basic interpretative issues.

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