Concurring and Dissenting Opinion of Professor Brigitte Stern

Opening of the document

CONCURRING AND DISSENTING OPINION This opinion concerns the question of the Tribunal’s jurisdiction, which I do not consider to be capable of being created through the use of the MFN clause. Having first come to the conclusion that the Tribunal had no jurisdiction over the case, I then approached the merits phase on the basis of the majority decision, i.e. I looked at the case as if jurisdiction existed. I do not comment in this opinion on the merits phase, but for stating that I subscribe to the results of the Award on the substantive issues raised. The question of the scope of MFN clauses in BITs is a complex issue, especially when related to the provisions on dispute settlement …