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Last update: December 16, 2015

Summaries of the Work of the International Law Commission

Most-favoured-nation clause (Part Two)

See also: Part One | Analytical Guide | Texts and Instruments

The International Law Commission first considered the topic of the most-favoured-nation clause from 1967 to 1978.

At its fifty-eighth session, in 2006, the Commission considered a proposal to include the topic “most-favoured-nation clause” in its long-term programme of work. The Commission decided to seek the views of Governments as to the utility of further work by the Commission on the topic.1

At its fifty-ninth session, in 2007, the Commission established an open-ended Working Group on the Most-favoured-Nation clause under the chairmanship of Mr. Donald McRae to examine the possibility of including the topic “Most-favoured-Nation clause” in its long-term programme of work.2

At its sixtieth session, in 2008, the Commission decided to include the topic in its programme of work and to establish a Study Group at its sixty-first session.3

The General Assembly took note of the decision of the Commission in resolution 63/123 of 11 December 2008.

At its sixty-first session, in 2009, the Commission established a Study Group on The Most-Favoured-Nation clause, co-chaired by Mr. Donald M. McRae and Mr. A. Rohan Perera. The Study Group considered a framework that would serve as a road map for future work, in the light of issues highlighted in the syllabus on the topic and made a preliminary assessment of the 1978 draft articles with a view to reviewing the developments that had taken place since then.4

At its sixty-second session in 2010, the Commission reconstituted the Study Group on The Most-Favoured-Nation clause, co-chaired by Mr. Donald M. McRae and Mr. A. Rohan Perera. The Study Group considered and reviewed the various papers prepared on the basis of the framework which had been agreed upon in 2009,5including a catalogue of MFN provisions and papers on the 1978 draft articles, the practice of GATT and WTO, the work of OECD and UNCTAD on MFN, and the "Maffezini" issue,6and set out a programme of work for the sixty-third session.7The Commission took note of the oral report of the Co-Chairmen of the Study Group.8

At the sixty-third session in 2011, the Commission reconstituted the Study Group on the Most-Favoured-Nation clause. The Study Group held a wide-ranging discussion, on the basis of the working paper on the Interpretation and Application of MFN Clauses in Investment Agreements and a framework of questions prepared to provide an overview of issues that may need to be considered in the context of the overall work of the Study Group, while also taking into account other developments, including recent arbitral decisions, and set out a programme of work for the future.9

At the sixty-fourth and sixty-fifth sessions, in 2012 and 2013, respectively, the Commission reconstituted the Study Group on The Most-Favoured-Nation clause, under the chairmanship of Mr. Donald M. McRae.

At the sixty-sixth session in 2014, the Commission reconstituted the Study Group on The Most-Favoured-Nation clause, under the chairmanship of Mr. Donald M. McRae. In his absence, Mr. Mathias Forteau served as chairman. The Commission took note of the oral report on the work of the Study Group, which included a consideration of a draft final report.

At the sixty-seventh session in 2015, the Commission received and welcomed with appreciation the final report on the work of the Study Group on The Most-Favoured-Nation clause and endorsed the summary conclusions of the Study Group. The Commission commended the final report to the attention of the General Assembly, and encouraged its widest possible dissemination. The Commission thus concluded its consideration of the topic.

The work of the Commission on the topic as described above proceeded in accordance with the resolutions adopted by the General Assembly under the item relating to the report of the International Law Commission.10

1 See Official Records of the General Assembly, Sixty-first Session, Supplement No. 10 (A/61/10), para. 259.

2 See Official Records of the General Assembly, Sixty-second Session, Supplement No. 10 (A/62/10), para. 377.

3 See Official Records of the General Assembly, Sixty-third Session, Supplement No. 10 (A/63/10), paras. 351–352. For the syllabus on the topic, see ibid., annex B.

4 See Official Records of the General Assembly, Sixty-fourth Session, Supplement No. 10 (A/64/10), paras. 211–216.

5 See ibid., paras. 215–216.

6 See Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 10 (A/65/10), paras. 359–368.

7 Ibid., paras. 369–373.

8 Ibid., para. 358.

9 See Official Records of the General Assembly, Sixty-sixth session, Supplement No. 10 (A/66/10), paras. 347–362.

10 General Assembly resolution 63/123 of 11 December 2008.