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. It recalled the outcome of its previous consideration of the topic, and noted that some of its members believed that the topic should not be reopened since the basic policy differences that caused the General Assembly to take no action on the Commission’s draft articles had not been resolved, and should first be dealt with in international forums with the necessary technical expertise and policy mandate. Other members considered that, given the changes in the international situation and the continued importance of the most-favoured-nation clause in contemporary treaties, in particular in the fields of trade law and international investment law, the time had come to undertake further work on the question. 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, chaired by Donald M. 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, on the basis of a recommendation of the Working Group on the long-term programme of work, identified the topic “The Most-Favoured-Nation clause” for inclusion in its long-term programme of work.3 A syllabus describing the possible overall structure of, and approach to, the topic was annexed to that year’s report of the Commission.4 At the same session, the Commission decided to include the topic in its current programme of work and to establish a Study Group for the topic at its sixty-first session, in 2009.5
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 articles6 with a view to reviewing the developments that had taken place since then.7
At the sixty-second and sixty-third sessions, in 2010 and 2011 respectively, the Commission reconstituted the Study Group on The Most-Favoured-Nation clause, co-chaired by Mr. McRae and Mr. Perera.8 At the sixty-fourth to sixty-sixth sessions, in 2012, 2013 and 2014, respectively, the Commission reconstituted the Study Group on The Most-Favoured-Nation clause, chaired by Mr. McRae.9 At the sixty-sixth session, the Commission took note of the oral report on the work of the Study Group, which included a consideration of a draft final report.10
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 clause11 and endorsed the summary conclusions of the Study Group.12 The Commission commended the final report to the attention of the General Assembly, and encouraged its widest possible dissemination.13 The Commission thus concluded its consideration of the topic.
The General Assembly, by resolution 70/236 of 23 December 2015, took note of the final report on the topic “The Most-Favoured-Nation clause”, and encouraged its widest possible dissemination.
1 See Yearbook … 2006, vol. II (Part Two), paras. 32–33 and 259.
2 See Yearbook … 2007, vol. II (Part Two), para. 377. The report of the Working Group is contained in document A/CN.4/L.719.
See Yearbook … 2008, vol. II (Part Two), paras. 351–352.
6 See Yearbook … 1978, vol. II (Part Two), paras. 45 and 74. The final text of the draft articles is reproduced in volume II, annex V, section 6.
7 See Yearbook … 2009, vol. II (Part Two), paras. 211–216.
8 See Yearbook … 2011, vol. II (Part Two), para. 347.
9 See Yearbook … 2012, vol. II (Part Two), para. 243; Yearbook … 2013, vol. II (Part Two), para. 152; Yearbook … 2014, vol. II (Part Two), para. 251.
10 See Yearbook … 2014, vol. II (Part Two), para. 253.
11 See Yearbook … 2015, vol. II (Part Two), annex.