Most arbitral decisions which supported the Maffezini used MFNT to bypass the requirement to litigate in the domestic forum of the host State for a specific period.
The investors have also attempted to use MFNT to extend the jurisdiction ratione materiae (subject matter jurisdiction), (37) and jurisdiction ratione temporis (temporal jurisdiction) of the Arbitral Tribunals.
The Power of MFNT to Import ISA from Other Treaties
In this regard, a more important question arises as to whether MFNT can import the ISA even if the basic treaty excludes the system.
Such non-inclusion may not be able to bring the intended results if the MFNT provision is not reformed at the same time.
It is worthy to mention here that, the Maffezini Tribunal while bypassing the domestic litigation requirement by MFNT cautioned that a similar application of MFNT might not be permissible to bypass highly institutionalised dispute settlement mechanisms specifically contemplated within IIAs, for example, ICSID and UNCITRAL.
Nevertheless, States should not take the multilateralising power of MFNT lightly.
The earlier sections have demonstrated as to how the use of MFNT to DSPs may affect the regulatory power of the host State in an investment relationship, and may unevenly benefit the foreign investors.
(56) On the other hand, some States are still reluctant to reform the MFNT provisions within their IIAs.
While the use of MFNT to DSPs benefits the investors, it diminishes the power of the domestic court of the host State.
Therefore, in the post-Maffezini period, States have behaved differently to exclude DSPs from MFNT. However, most States are turning towards a trend of excluding DSPs from MFNT.
The earlier discussions established that MFNT provisions within IIAs have important economic and political implications on the investment relationships of States.