Sunteți pe pagina 1din 27

Published as ‘Ejusdem Generis and Noscitur a Sociis’, in: J. Klingler, Y.

Parkhomenko,
C. Salonidis [Eds.], Between the Lines of the Vienna Convention? Canons and Other Prin-
ciples of Interpretation in Public International Law (Wolters Kluwer 2019) 133-160

Ejusdem generis and noscitur a sociis in municipal and international law:


interpretative cross-fertilisation?

FREYA BAETENS1

1. Introduction
Ejusdem generis and noscitur a sociis have their origin as common law canons of construc-
tion, used to assist in the interpretation of contracts and statutes under domestic law.
Black’s Law Dictionary provides the following definitions:

Noscitur a sociis [Latin “it is known by its associates”] (18c) A canon of construction
holding that the meaning of an unclear word or phrase, esp. one on a list, should be
determined by the words immediately surrounding it. Also termed associated-words
canon. Cf. Ejusdem generis; Expressio unius est exclusio alterius; Rule of rank.

Ejusdem generis [Latin “of the same kind or class”] (17c) 1. A canon of construction
holding that when a general word or phrase follows a list of specifics, the general
word or phrase will be interpreted to include only items of the same class as those
listed. For example, in the phrase horses, cattle, sheep, pigs, goats, or any other farm
animals - despite its seeming breadth - would probably be held to include only four-
legged, hoofed mammals typically found on farms, and thus would exclude chickens.
Also termed Lord Tenterden's rule. Cf. Expressio unius est exclusio alterius; Noscitur
a sociis; Rule of rank 2. Loosely, noscitur a sociis.2

According to these definitions, there is a degree of overlap in both canons: ejusdem generis
can be seen as a specific application of the more general canon of noscitur a sociis.3 A pos-

1
Freya Baetens (Cand.Jur./Lic.Jur. (Ghent); LL.M. (Columbia); Ph.D. (Cambridge)) is Professor of Public
International Law at the PluriCourts Centre of Excellence (Faculty of Law, Oslo University), working on an
interdisciplinary research project evaluating the legitimacy of international courts and tribunals. She is also
affiliated with the Europa Institute (Faculty of Law, Leiden University). As a Member of the Brussels Bar,
she regularly acts as counsel or expert in international disputes. This work was partly supported by the Re-
search Council of Norway through its Centres of Excellence funding scheme, project number 223274. She is
grateful for the comments of the participants of the conference on ‘Principes généraux de droit – en droit
national, européen et international’ - ‘General Principles of Law – in National, European and International
Law’ (Conseil d’État, Paris, 15-16 February 2018) as well as the comments of Mads Andenaes, Eirik Bjorge
and James Crawford.
2
Black’s Law Dictionary (Thomson Reuters, 10th ed, 2014).
3
Frank B. Cross, The Theory and Practice of Statutory Interpretation (Stanford, 2009) 87: ‘Generally, [the
canons] hold that if a statute contains a list of words, the meaning of individual words should be determined
in part by the content of the other listed language. Suppose a bill were to prohibit transporting a woman
across state lines for “prostitution or debauchery, or for any other immoral purpose”. Immoral is a very broad
word that potentially encompasses many arguable immoral purposes on its face, such as a business fraud. The
canons would suggest that the bill was limited to issues of sexual immorality, because that was the context of

Electronic copy available at: https://ssrn.com/abstract=3334900


-2-

sible reason underlying the emergence of the ejusdem generis rule ‘is that the drafter must
be taken to have inserted the general words in case something which ought to have been
included among the specifically enumerated items had been omitted; a further reason is
that, if the general words were intended to have their ordinary meaning, the specific enu-
meration would be pointless’.4

Despite its common law origins, the ejusdem generis canon has been referred to by a wide
range of international courts and tribunals. But while there is breadth, there is little depth:
despite frequent references to it and with the exception of the interpretation of most-
favoured-nation (‘MFN’) clauses, ejusdem generis is not an unfluential canon of construc-
tion in most areas of international law. A fortiori, the noscitur a sociis canon has apparent-
ly never been explicitly applied at the international level. For this reason, this Chapter fo-
cuses on analysing, first, how the ejusdem generis canon developed under municipal law
and how it has been received and acted upon by judges and commentators; second, how it
is applied sensu stricto under international law; and third, how its international application
is being adapted and expanded upon (sensu latu).

2. Development and reception of ejusdem generis under municipal law


While the canons of construction may be useful interpretative devices, they have been
viewed with a degree of suspicion. In the House of Lords, Lord Scarman said ejusdem
generis is ‘like many other rules of statutory interpretation … a useful servant but a bad
master’.5 This was said in Quazi v Quazi, a case in which the Court considered whether a
khula divorce obtained in Thailand or a talaq divorce obtained in Pakistan validly dis-
solved a marriage under UK law. In issue was whether such means of divorce constituted
‘other proceedings’ in the phrase ‘judicial or other proceedings’ in Section 2 of the Recog-
nition of Divorces and Legal Separations Act of 1971.6 The Court rejected the respondent’s
argument that that ‘other proceedings’ should be understood as being limited to quasi-
judicial means of divorce in line with the ejusdem generis rule. Instead it interpreted Sec-
tion 2 in accordance with the Hague Convention on the Recognition of Divorces and Legal
Separations 1970,7 which the UK Act was intended to implement and which was referred
to in its preamble; ‘other proceedings’ was held to encompass the talaq.

Lord Scarman’s decision might be read as a competition between two different means of
statutory interpretation, the first looking to the purpose of the UK Act and hence to the in-
ternational treaty, the second looking more narrowly to the context of the immediately sur-
rounding words in Section 2. Lord Scarman preferred the former, saying that ejusdem gen-
eris ‘is, at best, a very secondary guide to the meaning of a statute. The all-important mat-

the listed language.’ See also: John Bell and Sir George Engle, Cross’ Statutory Interpretation (Butterworths,
1995) 138.
4
John Bell & George Engle, Cross’ Statutory Interpretation (Butterworths, 3rd ed., 1995) 136.
5
Quazi v Quazi (England, House of Lords, 22 November 1979) 74 International Law Reports 530, 553.
6
The Recognition of Divorces and Legal Separations Act (1971) Section 2.
7
Hague Convention on the Recognition of Divorces and Legal Separations (adopted 1 June 1970, entry into
force 24 August 1975) 978 UNTS 399.

Electronic copy available at: https://ssrn.com/abstract=3334900


-3-

ter is to consider the purpose of the statute.’8 Viewed thus it might be said that internation-
al law (as reflecting the Act’s purpose) triumphed over the common law canon. Bell and
Engle suggest that the ‘case shows that the purpose of legislation may require general
words to be construed in their most general sense in spite of the fact that they are preceded
by specific words.’9 Another view is that of Lord Diplock, who observed in Quazi v. Quazi
that the application of the ejusdem generis doctrine was precluded because ‘there [was] no
material on which to base an inference that there was some particular genus of proceedings
to which alone [the draftsman’s] mind was directed when he used the word “other”’.10 The
ejusdem generis doctrine does not apply, he said, unless there is ‘a list of two or more ex-
pressions having more specific meanings and sharing some common characteristics from
which it is possible to recognise them as being species belonging to a single genus and to
identify what the essential characteristics of that genus are’. 11

In this instance, there was only one expression, ‘judicial proceedings’, and so the ejusdem
generis canon was not applicable: there was thus no competition between the two methods
of interpretation. The strict approach of Lord Diplock in Quazi has been criticised as it is
arguably possible to create a genus in such situations. Moreover, courts have generally
been lenient in limiting the meaning of general words through the ejusdem generis rule ‘by
reference to a fairly heterogeneous set of words’.12 Canons of construction have certain
shortcomings, however: they imply a conservative view of legislation and of the powers of
judges. Canons can form a barrier for a judge in expanding the coverage of a statute be-
yond what is explicitly contemplated by its wording, even if such an expansion would be
logical in light of the purpose of the statute and its legislative history.13 The apparently log-
ical, uncontroversial and ideologically neutral character of canons can be challenged by
drawing upon the work of Karl Llewellyn, who noted that canons could, in fact, lead to any
result the judge in question might wish to reach.14 As such, despite their apparently ‘me-
chanical’ nature, canons can also be viewed as a vehicle by which judges can obscure the
full extent of their judicial law-making endeavours as a result of ‘interpretation’.

On another front, the canons of interpretation can also be critiqued from the perspective of
logical reasoning.15 An example is the expressio unius canon: the lack of a particular item
on a list in a statute can be traced back to a number of reasons, such as a lack of consensus
or the desire to leave certain issues to the discretion of the judges. Or it might simply be an
unintended omission: exceptions to general principles might not mean that the legislature
intended other exceptions to be recognised by the judiciary, for example, if certain excep-

8
Quazi v Quazi (England, House of Lords, 22 November 1979) 74 International Law Reports 530, 553.
9
John Bell and Sir George Engle, Cross’ Statutory Interpretation (Butterworths, 1995) 137.
10
Quazi. v Quazi (England, House of Lords, 22 November 1979) 74 International Law Reports 530, 536.
11
Ibid.
12
John Bell and Sir George Engle, Cross’ Statutory Interpretation (Butterworths, 1995) 137.
13
Frank B. Cross, The Theory and Practice of Statutory Interpretation (Stanford, 2009) 87.
14
Ibid, 91, referring to Karl L. Llewellyn, ‘Remarks on the Theory of Appellate Decisions and the Rules or
Canons about How Statutes Are to Be Construed’ (1950) 3 Vanderbilt Law Review 395 and Richard A. Pos-
ner, ‘Statutory Interpretation – in the Classroom and in the Courtroom’ (1983) 50 University of Chicago Law
Review 800, 816-817.
15
Ibid, 92.

Electronic copy available at: https://ssrn.com/abstract=3334900


-4-

tions simply were not foreseen at the time of drafting, thus making it impossible to align
these new developments with the initial purpose of the law.16

Similar criticisms have been made with respect to the application of the ejusdem generis
canon to the interpretation of treaties: it is essentially a ‘grammatical rule’ derived from
common sense.17 The use of interpretative canons in relation to treaties is arguably ques-
tionable, unless the canon is of a fundamental and universal character – and it is doubtful
whether this could be said for the ejusdem generis rule. Hall wrote that it would be inap-
propriate to allow its use in international legal interpretation: ‘[t]here is no place for the
refinements of the courts in the rough jurisprudence of nations’.18 McNair was of the opin-
ion that ‘many of these rules are tinged with a love of dialectic which is somewhat exas-
perating to-day’, and ‘unaided common sense … is not always the best instrument for
achieving a construction which will win general acceptance’.19 Similarly, purely by look-
ing at a legal rule such as ejusdem generis, it is unclear how it is to be applied: clarity is
only gained when a situation emerges in which a prior fact determination establishes which
rule should be applied in that particular situation. As such, Reisman thought these rules
possess an ‘essential[ly] meaningless’ character.20

Despite these warnings against regarding the ejusdem generis canon as a general interpre-
tative principle of law, international courts and commentators have applied it in several
subfields of international law. The following sections explore this practice, first, in relation
to the application of the principle in accordance with its strict common law definition, and
second, with regard to its more expansive treatment.

3. Sensu stricto application of ejusdem generis under international law


The sensu stricto use of ejusdem generis refers to those occasions where it is applied to
interpret a general term which is preceded by specific examples from which it is possible
to deduce a genus.21 The principle has been referred to in a range of institutional settings,
including the Permanent Court of International Justice, the Iran-US Claims Tribunal, inter-
national criminal tribunals and courts applying international human rights law, and (per-
haps most extensively) the dispute settlement body of the World Trade Organization
(‘WTO’).

3.1. Permanent Court of International Justice and International Court of Justice

16
Ibid, 92, referring to Cass R. Sunstein, ‘Interpreting Statutes in the Regulatory State’ (1989) 103 Harvard
Law Review 405, 455 and Richard A. Posner, The Problems of Jurisprudence (1990) 281.
17
Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law, vol. 1, part 4 (9th ed, 2008) 1280.
18
William Edward Hall, International Law (7th ed, Clarendon Press 1917) 349.
19
Arnold McNair, ‘Application of the Ejusdem Generis Rule in International Law’ (1924) 5 British Yearbook
of International Law, 181, 181-2.
20
Michael Reisman, Nullity and Revision: The Review of International Judgments and Awards (Yale Univer-
sity Press 1971) 621.
21
A limitation favoured by Arnold McNair, The Law of Treaties (OUP original 1961, reprinted 1986) 393.

Electronic copy available at: https://ssrn.com/abstract=3334900


-5-

The Permanent Court applied the canon in its Advisory Opinion No. 3 of 1922, in which
the Court was asked whether the examination of proposals for the organisation and devel-
opment of methods of agricultural production, and of other questions of a like character,
fell within the competence of the International Labor Organisation (‘ILO’).22 The Perma-
nent Court observed that the phrasing of the question posed to it implied that ‘other ques-
tions’ were ‘questions essentially of the same nature for the present purposes as that of the
organisation and development of methods of production’, although it refrained from flesh-
ing out what these ‘other questions’ might be in absence of further specification as to their
meaning.23

The Court applied the canon again in Advisory Opinion No. 3 whilst interpreting the
meaning of ‘other measures’ in the preamble to Part XIII (Labour) of the Treaty of Ver-
sailles which contained the ILO Constitution.24 The Court summarised the activities of the
ILO enumerated in the preamble of the ILO Constitution as follows,25

[t]he object for which the International Labour Organisation was founded was the
amelioration of the lot of the workers and the adoption of humane conditions in mat-
ters such as the hours of labour, the labour supply, prevention of unemployment, an
adequate living wage, protection against sickness, disease and injury arising out of
employment, the protection of children, young persons and women, provision for old
age and injury, the protection of workmen employed in countries other than their own,
freedom of association, vocational and technical education, and, as the Treaty says,
“other measures”, which must mean measures to improve the conditions of labour
and to do away with injustice, hardship and privation.

The question is whether this is really an example of an application sensu stricto as it refers
to some form of object-and-purpose argument which hints at a rather open application. One
could argue this both ways. On the one hand, the Court has phrased the other elements of
the species in such a vague manner that it is possible for this to constitute another species
so that together they form a genus. On the other hand, this analysis does indeed then re-
semble more an object and purpose test rather than an application of the ejusdem generis
canon. Given that the Court is examining the preamble of the ILO Constitution, it would
however seem logical that this would be the point it would arrive at, given that it is not ex-
amining a single article but rather a more vaguely worded set of categories.

The International Court of Justice (‘ICJ’) has so far only dealt with this question indirectly
in the Case concerning the rights of nationals of the United States of America in Morocco

22
Arnold McNair, The Law of Treaties (OUP original 1961, reprinted 1986) 395 referring to Competence of
the ILO to Examine Proposal for the Organization and Development of the Methods of Agricultural Produc-
tion, Advisory Opinion, PCIJ (Ser B) 1922, 49.
23
Ibid, 59
24
Constitution of the International Labour Organization (adopted 1 April 1919, entered into force 28 June
1919) 15 UNTS 40.
25
Ibid, 57.

Electronic copy available at: https://ssrn.com/abstract=3334900


-6-

– further discussed below in the section on MFN clauses.26 The ejusdem generis principle
could potentially play a role in the Ukraine v. Russia case,27 currently pending before the
ICJ. One of the questions the Court will have to answer, should the case proceed to the
merits, is whether, if it is proven that the Russian Federation provides entities and individ-
uals responsible for terrorist acts in Ukraine with in-kind contributions including heavy
weaponry and training, such support falls under the term ‘funds’ in the International Con-
vention for the Suppression of the Financing of Terrorism. This term is defined in the Con-
vention as

assets of every kind, whether tangible or intangible, movable or
immovable, howev-


er acquired, and legal documents or instruments in any form, including electronic or
digital, evidencing title to, or interest in, such assets, including, but not limited to,
bank credits, travellers cheques, bank cheques, money orders, shares, securities,
bonds,
drafts, letters of credit.28

In order to decide upon this claim, it is conceivable that the Court relies on the ejusdem
generis principle to determine whether ‘assets of every kind’ includes weaponry and mis-
siles, among other.

3.2. Iran-US Claims Tribunal


The Iran-US Claims Tribunal applied the ejusdem generis rule in Grimm v Iran.29 The case
was brought by the widow of a US national who was assassinated in Iran in 1978; at the
time the victim was the highest-ranking executive of US nationality in the Iranian oil in-
dustry. The claimant alleged that Iran was responsible under international law for failing to
exercise due diligence in protecting her husband. The claim was dismissed for lack of ju-
risdiction on the basis that, inter alia, the claim did not arise from debts, contracts, expro-
priations or other measures affecting property rights as required by Article II(1) of the
Claims Settlement Declaration.30 The key issue in determining the jurisdiction of the Tri-
bunal in this case, according to the Tribunal, was ‘whether Mrs. Grimm has a “property
right” in the financial support of her deceased husband, and whether the alleged failure of
the Government of Iran to protect his life is one of the “measures affecting property rights”
that fall within the scope of Article II, paragraph 1 of the Claims Settlement Declaration.’31

The Tribunal adopted a narrow construction of ‘other measures’ in Article II(1) of the Dec-
laration, observing that ‘under the well-known principle of ejusdem generis the words

26
Case concerning the rights of nationals of the United States of America in Morocco (France v. United
States) Judgment, 1952 ICJ Rep 176, 191.
27
Application of the International Convention for the Suppression of the Financing of Terrorism and of the
International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Fed-
eration) Application instituting proceedings (16 January 2017).
28
Article 1(1), International Convention for the Suppression of the Financing of Terrorism, 2178 UNTS 197.
29
Grimm v Iran (Chamber One, 18 February 1983) 71 International Law Reports 650.
30
Iran-US Claims Settlement Declaration, 19 January 1981, 20 ILM 230.
31
Ibid, 654.

Electronic copy available at: https://ssrn.com/abstract=3334900


-7-

“other measures” in Article II, paragraph 1, ought to be, especially in the context of “debts
and contracts”, construed as generically similar to “expropriations” and the alleged failure
to provide protection is in no way similar to expropriations.’32 Holtzmann, the US Member
on the Tribunal, disagreed with the application of the ejusdem generis canon of construc-
tion, questioning the vague character of the canon:33

Article II, paragraph 1 lists a series of broad categories of claims as to which the Tri-
bunal has jurisdiction: (i) debts, (ii) contracts, (iii) expropriations and (iv) other
measures affecting property rights. Ejusdem generis applies, if at all, only when very
specific categories are followed by a highly vague and general phrase such as “or
otherwise”. Here that is not the case because all of the categories listed are general in
nature and in pari materia. Rather than “other measures affecting property rights”
being limited by the preceding category of “expropriations”, its inclusion in the treaty
simply adds a further category, leaving the Tribunal open to find liability arising out
of any measures which result in diminution of the value of property…

A notable feature of Grimm is that Members applying ejusdem generis in the majority,
Lagergren (of Sweden) and Kashani (of Iran),34 both came from civil law systems in which
the canon of construction is largely unknown.35

3.3. Human rights and international criminal law


The ejusdem generis rule has been used by domestic courts in interpreting the definition of
a refugee under the 1951 Refugee Convention.36 Article 1(A)(2) of the Convention (ex-
tended by the 1967 Protocol) stipulates that protection will be afforded to any person who:

As a result of events occurring before 1 January 1951 and owing to well-founded fear
of being persecuted for reasons of race, religion, nationality, membership of a particu-
lar social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to such fear, is un-
willing to return to it.

In Islam v. Secretary of State for the Home Department,37 Lords Steyn and Hope in the
House of Lords applied the ejusdem generis principle in order to interpret the meaning of
the term ‘membership of a particular social group’. The applicants were women who had

32
Ibid, 652.
33
Ibid, 659-660.
34
Reza Banakar, Normativity in Legal Sociology (Springer 2015) 169.
35
As noted by Arnold McNair, ‘Application of the Ejusdem Generis Rule in International Law’ (1924) 5
British Yearbook of International Law 181, 182.
36
Convention Relating to the Status of Refugees (adopted 28 July 1951, entry into force 22 April 1954) 189
UNTS 137.
37
Islam v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Another,
ex parte Shah (England, House of Lords, 25 March 1999) 124 International Law Reports 476.

Electronic copy available at: https://ssrn.com/abstract=3334900


-8-

left Pakistan as a result of violence or threats of violence in consequence of false accusa-


tions of adultery by their husbands. Even if they were recognised as members of a particu-
lar social group, a second hurdle had to be taken, namely, to demonstrate that their fear of
persecution was ‘for reasons of’ membership of such group. Their applications for asylum
in the UK failed at the first hurdle: they were rejected by authorities on the grounds that the
women were not members of a ‘particular social group’.

Lords Steyn and Hope, in separate judgments, rejected the views that ‘particular social
group’ refers to persons who are interdependent or cooperative. Instead they preferred the
view taken by US Board of Immigration Appeals in In re Acosta, in which an organised
group of taxi drivers from El Salvador was considered to be a social group for the purposes
of the Convention.38 The Lordships cited the conclusion of the US Board of Immigration
approvingly, which noted the grounds listed in Article 1(A)(2) all constituted immutable
characteristics of an individual: ‘a characteristic that either is beyond the power of an indi-
vidual to change or is so fundamental to individual identity or conscience that it ought not
be required to be changed’. Applying the canon of ejusdem generis, the Board had con-
cluded that the phrase ‘particular social group’ is aimed at those who are members of a
group comprised of individuals which share the same immutable characteristic – which
could either be innate to that individual, or an indication of shared past experiences.39

Lord Hope observed that ‘[i]f one is looking for a genus, in order to apply the eiusdem
generis rule of construction to the phrase “particular social group,” it is to be found in the
fact that the other Convention reasons are all grounds on which a person may be discrimi-
nated against by society.’ 40 Lord Steyn added that the drafters of the Refugee Convention
provided a list of the grounds of discrimination which were recognised by society at the
time, adding the category of ‘membership of a particular social group’ as an additional dis-
criminatory ground. This did not imply, he argued, that the social group needed to be ‘co-
hesive’, as this was a criterion which was not included by the drafters and to do so would
run counter to the ejusdem generis canon.41 In the end, Lords Steyn and Hope were in the
majority (along with Lord Hoffmann) in holding that women in Pakistan in this context
constituted a ‘particular social group’. The appeals were allowed.

The frequent indeterminacy of international criminal rules and the resulting legal uncer-
tainty has led to domestic and international criminal courts to be called upon to ‘construct’
the law, for example in the application of the prohibition on ‘crimes against humanity’.42
Already in 1952, in Tarnek, the District Court of Tel Aviv held that the provision ‘other
inhumane acts’ as part of the prohibition of ‘crimes against humanity’ in the 1950 Israeli

38
United States Board of Immigration Appeals, In re Acosta (1985) 19 I & N 211.
39
Ibid, 484 (per Lord Steyn) and 503 (per Lord Hope).
40
Ibid, 501.
41
Ibid, 486.
42
A. Cassese, L. Baig, M. Fan, P. Gaeta, C. Gosnell & A. Whiting, Cassese’s International Criminal Law
(OUP, 3rd ed, 2013) p. 28, 34 and 98; T. Jyrkkiö, ‘‘Other inhumane acts’ as Crimes Against Humanity’, Hel-
sinki Law Review 1 (2011) p. 197-198; T. Rauter, Judicial Practice, Customary International Criminal Law
and Nullum Crimen Sine Lege (Springer 2017) 49.

Electronic copy available at: https://ssrn.com/abstract=3334900


-9-

Law on the Doing of Justice to Nazis and their Collaborators should be interpreted subject
to the principle of ejusdem generis. Such ‘other inhumane acts’ should be of the type of
specific action mentioned earlier in the same definition.43 The punishment for such crimes
is death, so the Court reasoned that ‘it can be assumed that the legislator intended to inflict
the most extreme punishment known to the penal code only for those inhumane actions
which resemble in their type and severity “murder, extermination, enslavement, starvation
and deportation of a civilian population”.’ 44 The defendant in Tarnek, a former inmate in
the concentration camp of Auschwitz-Birkenau, had beaten and humiliated other detainees.
The Court concluded that ‘even if some of the actions could be considered inhumane from
known aspects, they do not, under the circumstances, reach the severity of the actions
which the legislator intended to include in the definition of “crimes against humanity” in
Article 1 of the Law’. 45

Nearly five decades later, in Tadić, the Trial Chamber of the International Criminal Tribu-
nal for the former Yugoslavia (‘ICTY’) adopted a narrow construction of Article 5 of the
Tribunal’s Statute,46 applying the ejusdem generis canon.47 This Article provides for juris-
diction in respect of crimes against humanity, listing acts such as murder, extermination,
imprisonment or torture – but also ‘other inhumane acts’ (Article 5(i) of the ICTY Statute).
The Prosecutor alleged that the discharging of the contents of a fire extinguisher into a
dead body could constitute such an inhumane act. The Trial Chamber rejected this argu-
ment on the basis that, inter alia, ‘having regard to the inhumane acts specifically listed
under Article 5(a) to (h) of the Statute, that the inhumane act contemplated in Article 5(i)
must be one which has to be inflicted on a living individual if it is not to offend the
ejusdem generis rule.’ 48

When interpreting the same provision, the ICTY Trial Chamber in Kupreškić et al. started
out by stating that ‘resort to the ejusdem generis rule of interpretation does not prove to be
of great assistance’.49 Although it recognised and referred to various court decisions in
which such a rule of interpretation had been relied upon, the Trial Chamber was of the
opinion that it ‘lacks precision, and is too general to provide a safe yardstick for the work
of the Tribunal’.50 This does not mean it considered the ejusdem generis rule altogether
useless: the Trial Chamber held that ‘[o]nce the legal parameters for determining the con-

43
Tarnek, District Court of Tel Aviv (Judgment of 14 December 1951) 540, para. 7, referred to in A.
Cassese, L. Baig, M. Fan, P. Gaeta, C. Gosnell & A. Whiting, Cassese’s International Criminal Law (OUP,
3rd ed, 2013) p. 28.
44
Ibid, 540, para. 7.
45
Ibid, 540, para. 7.
46
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 32 ILM
1159.
47
Prosecutor v Tadić (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber
II, Case IT-94-1-T, 7 May 1997).
48
Ibid, 256. This decision was appealed against, but the judgment in appeal (15 July 1999) does not overturn
this part of the reasoning of the Trial Chamber.
49
Prosecutor v Kupreškić et al. (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Trial
Chamber, Case IT-95-16, 14 January 2000) para. 564.
50
Ibid.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 10 -

tent of the category of “inhumane acts” are identified, resort to the ejusdem generis rule for
the purpose of comparing and assessing the gravity of the prohibited act may be warrant-
ed.’51 In the same case, the Tribunal also relied on the ejusdem generis rule to explore the
boundaries of Article 5(h) of the ICTY Statute: persecutions on political, racial and reli-
gious grounds as crimes against humanity, whereby it held that:

[t]he ejusdem generis criterion can be used as a supplementary tool, to establish


whether certain acts which generally speaking fall under the proscriptions of Article
5(h), reach the level of gravity required by this provision. The only conclusion to be
drawn from its application is that only gross or blatant denials of fundamental hu-
man rights can constitute crimes against humanity. 52

Other provisions which would potentially allow for the application of the ejusdem generis
rule in the field of international criminal law include ‘any other form of sexual violence of
comparable gravity’ (Article 7 (1)(g) of the ICC Statute) and ‘other inhumane acts of a
similar character’ (Article 7(1)(k) of the ICC Statute).53 Nevertheless, there are significant
limits to the application of the ejusdem generis principle in this field: the nullum crimen
sine lege adage protects individuals against retrospective creation of crimes.

3.5. WTO dispute settlement


The ejusdem generis rule has been applied by the WTO dispute settlement body, and in
particular, the Appellate Body on a number of occasions, for example in order to interpret
provisions in the Agreement on Subsidies and Countervailing Measures (‘SCM Agree-
ment’) and the Technical Barriers to Trade Agreement (‘TBT Agreement’).54

In Japan – Countervailing Duties on Dynamic Random Access Memories from Korea,55


the Appellate Body interpreted Article 1.1(a)(1)(i) of the SCM Agreement in accordance
with ejusdem generis (although without referring to the canon by name). The case con-
cerned countervailing duties (anti-subsidy duties) imposed by Japan on the import of dy-
namic random access memory, a type of memory typically used for data or programme
code that a computer processor needs to function. Japan applied the countervailing duties
after concluding that debt-restructuring programmes entered into by Hynix, a Korean firm,
constituted countervailable subsidies. One of the issues for resolution on appeal was
whether Japan had correctly concluded that the restructurings, which included extensions
of the maturities of existing loans, reductions of the interest rates on existing loans, conver-

51
Ibid. para 566.
52
Ibid. para 620. The defendants appealed against the judgment in Kupreškić et al. but this appeal was dis-
missed without any reference to the ejusdem generis principle (Judgment, 23 October 2001).
53
Rome Statute of the International Criminal Court (1998) 2187 UNTS 90.
54
Agreement on Subsidies and Countervailing Measures, annexed to the Marrakesh Agreement Establishing
the World Trade Organization (1994) 1869 UNTS 14; Agreement on Technical Barriers to Trade, annexed to
the Marrakesh Agreement Establishing the World Trade Organization (1994) 1868 UNTS 12.
55
Japan – Countervailing Duties on Dynamic Random Access Memories from Korea, Report of the Appel-
late Body, AB-2007-3, WT/DS336/AB/R, 28 November 2007.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 11 -

sions of interest to principal and debt-to-equity swaps, involved ‘direct transfer[s] of funds’
within the meaning of the SCM Agreement. Article 1.1(a)(1)(i) provides that:

1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist if:
(a)(1) there is a financial contribution by a government or any public body within the
territory of a Member (referred to in this Agreement as "government"), i.e. where:
(i) a government practice involves a direct transfer of funds (e.g. grants, loans, and
equity infusion), potential direct transfers of funds or liabilities (e.g. loan guarantees)
[…].

The Appellate Body noted the use of the abbreviation ‘e.g.’ before the words ‘grants,
loans, and equity infusion’, reading this as an indication that ‘grants, loans, and equity in-
fusion’ are merely provided as examples of transactions under this Article. As such, trans-
actions similar to these three species are also covered. The Appellate Body held that the
restructurings of Japan all constituted situations in which ‘the financial position of the bor-
rower is improved and therefore there is a direct transfer of funds’ within the meaning of
the Article.56 The Appellate Body thus applied the ejusdem generis principle to a list of
non-exhaustive examples rather than a list of specific items followed by a general item.

The Appellate Body adopted a similar approach in United States – Measures Affecting
Trade in Large Civil Aircraft (Second Complaint).57 One issue in the case was whether cer-
tain collaborative undertakings between NASA and the US Department of Defence
(‘USDOD’) with Boeing could constitute a direct transfer of funds under the SCM Agree-
ment. The Appellate Body referred with approval to its decision in Japan – Countervailing
Duties on Dynamic Random Access Memories from Korea and also to the US’ reliance at
hearings on the canon of ejusdem generis.58 The Appellate Body characterised the NASA
procurement contracts and the assistance instruments of the Department of Defence ‘as be-
ing akin to a species of joint venture. Furthermore, these joint venture arrangements …
have characteristics analogous to equity infusions, one of the examples of financial contri-
butions included in Article 1.1(a)(1)(i) of the SCM Agreement’.59 Because of this com-
monality, the procurement contracts and assistance instruments fell within the scope of ‘di-
rect transfer of funds’ under this Article.

In United States – Certain Country of Origin Labelling (COOL) Requirements,60 the Ap-
pellate Body considered whether the ejusdem generis rule could be used to assist in the in-
terpretation of Article 2.2 of the TBT Agreement, which provides:

56
Ibid., para 251.
57
United States – Measures Affecting Trade in Large Civil Aircraft (Second Complaint), Report of the Ap-
pellate Body, AB-2011-3, WT/DS353AB/R, 12 March 2012.
58
Ibid, para. 615, ft. note 1290.
59
Para. 624.
60
United States – Certain Country of Origin Labelling (COOL) Requirements, Report of the Appellate Body,
AB-2012-3, WT/DS384/AB/R; WT/DS386/AB/R, 29 June 2012.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 12 -

Members shall ensure that technical regulations are not prepared, adopted or applied
with a view to or with the effect of creating unnecessary obstacles to international
trade. For this purpose, technical regulations shall not be more trade-restrictive than
necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment
would create. Such legitimate objectives are, inter alia: national security
requirements; the prevention of deceptive practices; protection of human health or
safety, animal or plant life or health, or the environment. In assessing such risks,
relevant elements of consideration are, inter alia: available scientific and technical
information, related processing technology or intended end-uses of products.

The Appellate Body considered whether the Panel had erred in finding that COOL
measures applied to livestock products fulfilled a legitimate objective under Article 2.2 in
providing consumers with information on the countries in which the livestock was born,
raised and slaughtered. Canada, in challenging the Panel’s original finding, argued that if
an objective is not directly related to one of the objectives listed in Article 2.2, it should be
considered whether a measure is of the same type as the listed objectives in accordance
with the principle of ejusdem generis.61

The Appellate Body, like the Panel, rejected this argument, writing that it did not see the
‘significant elements of commonality of the explicitly listed objectives’62 in Article 2.2.
that Canada alleged to exist, and the existence of which would be necessary in order to
constitute that there is a genus of objectives established by the Article. The Appellate Body
held that the objectives were expressed in extremely general language, and that ‘any rele-
vant “commonality” among explicitly listed objectives would have to relate to the nature
and content of those objectives themselves, rather than, as Canada seems to suggest, to the
fact that each objective … is also listed in exceptions provisions in other covered agree-
ments’.63 As such, the Appellate Body concluded that the Panel had correctly relied upon
the ejusdem generis principle in order to identify which objectives were legitimate under
Article 2.2.64

In India – Additional and Extra-Additional Duties on Imports from the United States, the
Panel had recourse to the ejusdem generis canon to examine Article II.1(b) of the GATT
establishing the schedules of concessions. More specifically, this Article provides that the
products in Part I of the Schedule:

shall, on their important into the territory to which the Schedule relates … be ex-
empt from ordinary customs duties in excess of those set forth and provided therein.
Such products shall also be exempts from all other duties or charges of any kind im-
posed on or in connection with the importation in excess of those imposed on the

61
Ibid, para. 437.
62
Ibid, para. 444.
63
Ibid, para. 444.
64
Ibid, para. 444.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 13 -

date of this Agreement or those directly and mandatorily required to be imposed


thereafter by legislation in force in the importing territory on that date.

The Panel focused specifically on the phrase ‘other duties or charges’ and held that this
residual category ‘should not be considered as comprising any and all duties imposed on
the importation of a product other than ordinary customs duties’.65 Instead, it held that the
relevant context indicated that, ‘consistently with the well-established ejusdem generis
canon of construction, the category of “other duties or charges” imposed on the importa-
tion of a product should be considered as encompassing only such duties or charges as are
of the same kind as ordinary customs duties.’ 66

As a final illustration: in United States – Anti-Dumping Measures on Stainless Steel Plate


in Coils and Stainless Steel Sheet and Strip from Korea, a WTO Panel examined Article
VI:1 of the GATT and Article 2.4. of the Anti-Dumping Agreement, concluding that:

All of the “differences” for which adjustments are specifically permitted under those
provisions … are “differences” about which the seller would know at the time it en-
tered into its sales agreements and set its prices. In keeping with the ejusdem generis
doctrine … the phrase that allows adjustments for “other differences affecting price
comparability” must also be limited to “differences” about which the seller would
know at the time it entered into its sales agreements and fixed its prices.67

In sum, the sensu stricto application of the ejusdem generis principle focuses on the inter-
pretation of a phrase by reference to what is said in the preceding sentence or paragraph,
even though occasionally also the object and purpose of a text are alluded to. Increasingly,
however, such object and purpose form the main focus of the interpretative debate, leading
to the adaptation and expansion of the ejusdem generis principle, as analysed in the next
section.

4. Sensu latu adaptation and expansion of ejusdem generis under interna-


tional law
A second category of cases which deal with the ejusdem generis principle under interna-
tional law apply the canon in a broader sense (sensu latu). In these cases, ejusdem generis
serves neither to interpret a general word by reference to surrounding specific words nor to
restrict the scope of a non-exhaustive list by reference to the items expressed in the list.
Instead, it is used to understand whether a general word, or a right or obligation, in a treaty
is of the same kind or class as another. That is, it functions as a way of comparing the sub-
ject matter of distinct rights or obligations. In this broader use, the source of the genus is

65
India – Additional and Extra-additional Duties on Imports from the United States, Report of the Panel,
2008 WTO DS LEXIS 297, para. 7.141.
66
India – Additional and Extra-additional Duties on Imports from the United States, Report of the Panel,
2008 WTO DS LEXIS 297, para. 7.141.
67
United States – Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and
Strip from Korea, 2000 WTO DS Lexis 28, at footnote 102.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 14 -

not immediately preceding or surrounding words; it can be the entire object and purpose of
the treaty in which the right or obligation is located.

The most frequent use of the ejusdem generis principle sensu latu is made in the context of
MFN treatment, being ‘treatment accorded by the granting State to the beneficiary State, or
to persons or things in a determined relationship with that State, not less favourable than
treatment extended by the granting State to a third State or to persons or things in the same
relationship with that third State.’68 In order to successfully invoke an MFN clause, one has
to demonstrate that such ‘same relationship’ (or ‘like circumstances’) exists which, in turn,
warrants the application of the ejusdem generis rule. MFN treatment is addressed in the
first section below, followed by an analysis of the expansive application of the ejusdem
generis principle beyond the context of MFN clauses.

4.1. Most-favoured-nation (‘MFN’) treatment


As stated, the sensu latu use of ejusdem generis is most consistently found in the interpre-
tation and application of MFN clauses: ‘[a]n MFN clause applies subject to the ejusdem
generis principle, that is, in relation to all matters that fall within the scope of the treaty
containing the MFN rule. The exact scope of an MFN clause will be determined by the
wording of the clause, and the precise benefit granted will depend upon the right granted to
the third State.’69 The following sections outline the use of ejusdem generis: firstly, in rela-
tion to the determination of the scope of an MFN clause; and secondly in the context of
assessing whether MFN treatment is applicable in the determination of procedural rights
under dispute settlement clauses.

4.1.1. Determining the scope of the MFN clause


Numerous difficulties are attached to the determination of how an MFN clause should ap-
ply in practice, as ‘the ascertainment of what subject-matters, persons or things fall within
the same category … hinges on the interpretation of the intended scope of the clause’.70
This becomes particularly arduous in relation to modern investment treaties, as interpreta-
tion runs the risk ‘of altering treaty arrangements specifically made by the parties and ex-
tending most-favoured-nation treatment to areas which were not meant to be included’.71

In the Case concerning the rights of nationals of the United States of America in Morocco
the ICJ concluded that the United States was not entitled, by virtue of the MFN treatment
clauses in its 1836 Treaty with Morocco, to exercise rights of consular jurisdiction in the
French zone of Morocco other than those rights strictly included in that treaty. However,
68
Art. 5, Draft Articles on most-favoured nation clauses, Yearbook of the International Law Commission
(1978, vol. II, part 2).
69
Christoph Schreuer, ‘Investments, International Protection’ (June 2013), Max Planck Encyclopedia of Pub-
lic International Law (online), para. 72; Alejandro Faya Rodriguez, ‘The Most-Favored-Nation Clause in
International Investment Agreements – A Tool For Treaty Shopping’ (2008) 25 Journal of International Arbi-
tration 89, 90.
70
Robin Geiβ and Meinhard Hilf, ‘Most-Favoured-Nation Clause’ (July 2014), Max Planck Encyclopedia of
Public International Law (online), para. 31.
71
Ibid.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 15 -

the Court did not need to resolve this question by reference to the subject-matter of the
basic treaty (which could have warranted reliance on the ejusdem generis principle) as the
third-party treaties from which the United States sought to obtain the jurisdictional rights
had ceased to operate between Morocco and the third States (Britain and Spain).72

The Ambatielos Claim (Greece v. United Kingdom) concerned a claim by Greece that its
national had not been treated in the English courts according to the standards applied to
British subjects and foreigners, to which he was entitled by virtue of an MFN clause. The
ICJ only had jurisdiction to consider whether the UK was subject to an obligation to sub-
mit to arbitration under the Declaration to the Treaty of Commerce and Navigation be-
tween the UK and Greece of 1926,73 which it did indeed find in its judgment of 1953.74
The principal question was thus determined by the Commission of Arbitration,75 which
noted that the application of the MFN clause in the Treaty of 1886 states that it includes
‘all matters relating to commerce and navigation’, and that practice relating to other trea-
ties of commerce and navigation showed that a wide range of meanings had been given to
such phrases. It stated that many such treaties ‘contain provisions concerning the admin-
istration of justice’, and that whilst ‘it is true that “the administration of justice”, when
viewed in isolation, is a subject-matter other than “commerce and navigation” … this is not
necessarily so when it is viewed in connection with the protection of the rights of trad-
ers’.76 As such, the Commission held that the administration of justice should not be prima
facie excluded, and that whether it should be included ‘can only be determined in accord-
ance with the intention of the Contracting Parties as deduced from a reasonable interpreta-
tion of the Treaty’.77 Ultimately the finding that the MFN clause extended to the admin-
istration of justice had no bearing on the outcome of the dispute as the third-party treaties
relied upon by Greece did not provide for rights any more extensive than those contained
in the basic treaty. As such, it could be said that the Ambatielos case has not been entirely
correctly relied upon in recent jurisprudence in order to extend the application of the MFN
clause to jurisdictional issues.78

The commentaries to the Draft Articles on MFN Clauses finalised by the International Law
Commission (‘ILC’) in 1978 are also of relevance.79 The ILC had originally prepared a
number of draft articles on MFN clauses when preparing the text of what would eventually
become the 1969 Vienna Convention on the Law of Treaties; eventually it was decided to

72
Case concerning the rights of nationals of the United States of America in Morocco (France v. United
States) Judgment, 1952 ICJ Rep 176, 191.
73
Ambatielos Claim (Greece v. United Kingdom) (Jurisdiction) Judgment, 1952 ICJ Rep 28, 46.
74
Ambatielos Claim (Greece v. United Kingdom) (Merits: obligation to arbitrate) Judgment, 1953 ICJ Rep
10, 23.
75
Arbitration Commission, 6 March 1956, 23 International Law Reports 306, 319-20.
76
Ibid, 323.
77
Ibid, 323.
78
Zachary Douglas, ‘The MFN Clause in Investment Arbitration Treaty Interpretation Off the Rails’ (2011) 2
Journal of International Dispute Settlement 97, 102.
79
Draft Articles on most-favoured-nation clauses with commentaries, Yearbook of the International Law
Commission, 1978, vol. II, Part Two, p. 16.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 16 -

begin a separate project, solely on the topic of MFN clauses.80 The following draft articles
were intended to give effect to the ejusdem generis principle:

Article 9. Scope of rights under a most-favoured-nation clause


1. Under a most-favoured-nation clause the beneficiary State acquires, for itself or for
the benefit of persons or things in a determined relationship with it, only those rights
which fall within the limits of the subject-matter of the clause.
2. The beneficiary State acquires the rights under paragraph 1 only in respect of per-
sons or things which are specified in the clause or implied from its subject-matter.

Article 10. Acquisition of rights under a most-favoured-nation clause


1. Under a most-favoured-nation clause the beneficiary State acquires the right to
most-favoured-nation treatment only if the granting State extends to a third State
treatment within the limits of the subject-matter of the clause.
2. The beneficiary State acquires rights under paragraph 1 in respect of persons or
things in a determined relationship with it only if they:
(a) belong to the same category of persons or things as those in a determined re-
lationship with a third State which benefit from the treatment extended to
them by the granting State and
(b) have the same relationship with the beneficiary State as the persons and
things referred to in subparagraph (a) have with that third State.

The ILC observed that ‘the rule which is sometimes referred to as the ejusdem generis rule
is generally recognized and affirmed by the jurisprudence of international tribunals and
national courts and by diplomatic practice.’81 In this regard, reference was made to deci-
sions of French courts (pointedly not common law courts) using the rule, although in the
context of interpreting treaties. For instance, in the 1913 case of Braunkohlen Briket
Verkaufsverein Gesellschaft c. Goffart, ès qualités , the French Court of Cassation said that
‘the most-favoured-nation clause may be invoked only if the subject of the treaty stipulat-
ing it is the same as that of the particularly favourable treaty the benefit of which is
claimed.’82 The ILC added to this that the beneficiary of an MFN clause ‘cannot claim
from the granting State advantages of a kind other than that stipulated in the clause … It is
only the subject-matter of the clause that must belong to the same category, the idem ge-
nus, and not the relation between the granting State and the third State on the one hand and
the relation between the granting State and the beneficiary State on the other’.83

In addition, the ILC stated that ‘[i]t is also not proper to say that the treaty or agreement
including the clause must be of the same category (ejusdem generis) as that of the benefits

80
Draft Articles on most-favoured-nation clauses with commentaries, Yearbook of the International Law
Commission, 1978, vol. II, Part Two, para. 59.
81
Ibid 27.
82
Ibid 28 referring to M. Whiteman, Digest of International Law, Washington, D.C., U.S. Government Print-
ing Office, 1970, vol. 14, pp. 755 and 756, quoting the decision of the French Court of Cassation, 22 Decem-
ber 1913, in the case of Braunkohlen Briket Verkaufsverein Gesellschaft c. Goffart, es qualites.
83
Ibid 30.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 17 -

that are claimed under the clause’.84 The ILC also noted the following limitations with re-
spect to MFN clauses: first, that the right of the State which is the beneficiary of the clause
is restricted by the subject-matter of the clause and ‘the right conferred by the granting
State on the third State’.85 Similarly, it stated that an MFN clause might stipulate which
subjects fall within the scope of the MFN clause, but that it is not necessary that it does
so.86 When revisiting the issue between 2008 and 2015, the ILC considered the increased
reliance on MFN clauses in international trade and investment law, but still concluded that
‘[t]he core provisions of the 1978 draft articles continue to be the basis for the interpreta-
tion and application of MFN clauses today’.87 Moreover, ‘[t]he central interpretative issue
in respect of the MFN clauses relates to the scope of the clause and the application of the
ejusdem generis principle’. 88

Stern warnings have been issued, both by the ILC and others, against an overly broad use
of the MFN clause, particularly in the context of international investment law. Arguably, a
three-part test, reminiscent of the conditions for the application of the res judicata and lis
pendens principles, ought to be conducted. This way, any reliance on the ejusdem generis
rule would require identity of the type of parties, the subject-matter and the applicable law.
That would mean, for example, that investors could not attempt to obtain more favourable
treatment accorded to non-investors, outside the context of investment protection, or under
other types of treaties. In Garanti Koza, the Tribunal held that ‘the principle of ejusdem
generis restricts the application of an MFN clause to the displacement of clauses dealing
with the same subject matter in other treaties of the same nature’.89 Such a narrow interpre-
tation of the ejusdem generis principle would limit the number of situations in which an
MFN clause could be invoked successfully: in the absence of specific and unequivocal
guidance in the treaty, it would allow to avoid outcomes which the Contracting Parties
could not have reasonably intended.90 This may be particularly relevant in the debate con-
cerning the application of MFN treatment to dispute settlement clauses, as discussed in the
next section.

4.1.2. Applying MFN treatment to dispute settlement clauses


Opinions, both in case law and in the literature, are sharply divided as to whether MFN
clauses can be applied to procedural rights, in particular, rights to invoke dispute resolution
mechanisms.

84
Ibid 30.
85
Ibid 30.
86
Ibid 30.
87
ILC, Final Report of the Study Group on the Most-Favoured-Nation clause, Yearbook of the International
Law Commission, 2015, vol. II (Part Two) para. 212.
88
Ibid., para. 214.
89
Garanti Koza LLP v Turkmenistan, ICSID Case No. ARB/11/20, Decision on the Objection to Jurisdiction
for Lack of Consent, 3 July 2013, para. 54.
90
Baetens, F., ‘Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and In-
vestment Law’, in: S. Schill [Ed.], International Investment Law and Comparative Public Law (OUP 2010)
279-316.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 18 -

In Maffezini v. Spain,91 the Tribunal considered whether the claimant could avoid a re-
quirement stipulated in the Argentina-Spain BIT, which required the investor to litigate its
claim in domestic courts for a period of 18 months before being able to proceed to interna-
tional investment arbitration, by relying on a more favourable dispute resolution procedure
in the Chile-Spain BIT. Spain argued that the ejusdem generis principle was not relevant to
the matter at hand, as it could not be applied to procedural matters as opposed to substan-
tive matters relating to the treatment of investors by the host State.92

The Tribunal rejected that argument, holding that the MFN clause allowed to overcome the
treaty requirement of first litigating the dispute in domestic courts for a period of eighteen
months (which was not stipulated in other Spanish BITs). In language similar to the Am-
batielos award (but without explicitly referring to it), the Tribunal found that ‘there are
good reasons to conclude that today dispute settlement arrangements are inextricably relat-
ed to the protection of foreign investors, as they are also related to the protection of rights
of traders under treaties of commerce’.93 As such, even though issues relating to procedural
law did not touch directly upon the substance of a treaty, dispute settlement clauses were
essential in order to protect the rights which the treaty brought into being. Consequently,
and in light of the ejusdem generis principle, the Tribunal held that ‘if a third-party treaty
contains provisions for the settlement of disputes that are more favorable to the protection
of the investor's rights and interests than those in the basic treaty, such provisions may be
extended to the beneficiary of the most favored nation clause’,94 provided that the two trea-
ties relate to the same subject matter.

However, in keeping with Lord Scarman’s warning that ejusdem generis should be treated
as the servant and not the master, the Tribunal laid down in obiter some important consid-
erations and limitations in determining whether the subject-matter of the basic treaty ex-
tends to the dispute resolutions provisions of a third-party treaty. It noted that, in using
ejusdem generis in this particular context, it was important that this ‘should not be able to
override public policy considerations that the contracting parties might have envisaged as
fundamental conditions for their acceptance of the agreement’.95 Such risk could crop up in
a number of situations, for example if one of the contracting parties has explicitly stipulat-
ed that their consent to arbitration depended upon the prior exhaustion of domestic reme-
dies, or if the parties have included a fork-in-the-road clause within the agreement. Simi-
larly, if the parties had agreed to submit a dispute to a particular arbitration forum or a
‘highly institutionalised system of arbitration’ such as that of the North American Free
Trade Agreement (‘NAFTA’), then invocation of the MFN clause could not circumvent
this agreement. The Tribunal concluded on a cautious note, stating ‘that a distinction has to
be made between the legitimate extension of rights and benefits by means of the operation

91
Emilio Agustín Maffezini v Kingdom of Spain, ICISD Case No. ARB/97/7, Decision on Jurisdiction, 25
January 2000.
92
Ibid, para. 41.
93
Emilio Agustín Maffezini v Kingdom of Spain, ICISD Case No. ARB/97/7, Decision on Jurisdiction, 25
January 2000, para. 54.
94
Ibid, para. 56.
95
Ibid, para. 62.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 19 -

of the clause, on the one hand, and disruptive treaty-shopping that would play havoc with
the policy objectives of underlying specific treaty provisions, on the other hand’.96

Maffezini has been followed by similar cases which have answered this question in the af-
firmative.97 In Siemens, the Tribunal held that access to the special dispute settlement
mechanisms established by a treaty ‘is part of the protection afformed by the treaty’, and
thus fell within the scope of the MFN clause.98 In Gas Natural and Suez, the Tribunal simi-
larly affirmed the importance of dispute settlement procedures as part of investment pro-
tection, stating that these provisions fell within the scope of the MFN clause unless the in-
tention of the State parties indicated a clearly different approach.99 In RosInvestCo UK Ltd,
the Tribunal also held that it was possible to use an MFN clause in order to transfer dispute
settlement provisions in one treaty to another.100 In ABCI Investments, an ICSID Tribunal
held that the claimant could rely upon the principle of ejusdem generis in relation to the
choice of forum, as this was an ‘indispensable element’ of the BIT under examination.101
In AWG Group Ltd v Argentine Republic, an UNCITRAL Tribunal held that, counter to the
contention of the respondent, the ejusdem generis principle could not be used to limit the
application of an MFN clause to exclude its application to dispute settlement provisions,
instead approvingly quoting the findings by the panel in Maffezini.102

96
Ibid, para. 63.
97
Siemens A.G. v Argentine Republic (Decision on Jurisdiction, 3 August 2004) ICSID Case No ARB/02/8,
12 ICSID Rep 17; Camuzzi International S.A. v. Argentine Republic [II], ICSID Case No. ARB/03/7, Deci-
sion on Objections to Jurisdiction (10 June 2005); Gas Natural SDG, S.A. v The Argentine Republic (Deci-
sion of the Tribunal on Prelimiary Questions on Jurisdiction, 17 June 2005) ICSID Case No ARB/03/10, pa-
ra. 46-47; Suez, Sociedad General de Aguas de Barcelona SA & InterAguas Servicios Integrales del Agua SA
v Argentine Republic (Decision on Jurisdiction, 16 May 2006) ICSID Case No. ARB/03/17, para. 57, 60;
National Grid plc v Argentine Republic (Decision on Jurisdiction, 20 June 2006) UNCITRAL, para. 92-94;
Impregilo S.pA. v. Argentine Republic, ICSID Case No. ARB/07/17, Award (21 June 2011); AWG Group Ltd
v Argentine Republic, UNCITRAL, Decision on Jurisdiction, 3 August 2006; Hochtief AG v Argentina [De-
cision on Jurisdiction of 24 October 2011] ICSID Case No ARB/07/31; Teinver SA v Argentina [Decision on
Jurisdiction of 21 December 2012] ICSID Case No ARB/09/1; Garanti Koza v Turkmenistan ([Decision on
Jurisdiction of 3 July 2013] ICSID Case No ARB/11/20. See Robin Geiβ and Meinhard Hilf, ‘Most-
Favoured-Nation Clause’ (July 2014); Max Planck Encyclopedia of Public International Law (online), para.
32; Zachary Douglas, ‘The MFN Clause in Investment Arbitration Treaty Interpretation Off the Rails’ (2011)
2 Journal of International Dispute Settlement 97, 98; William Ahern, José Joaquín Caicedo, Alejandro López
Ortiz, ‘Two Solutions For One Problem: Latin America’s Reactions to Concerns’ (2016) 27 Spain Arbitra-
tion Review 9, 40.
98
Alejandro Faya Rodriguez, ‘The Most-Favored-Nation Clause in International Investment Agreements – A
Tool For Treaty Shopping’ (2008) 25 Journal of International Arbitration 89, 93-94.
99
Ibid 95.
100
RosInvestCo UK Ltd v Russian Federation [Arbitral Award on Jurisdiction of October 2007] paras 124–
39; see Christoph Schreuer, ‘Investments, International Protection’ (June 2013), Max Planck Encyclopedia of
Public International Law (online), para. 75.
101
ABCI Investments N.V. v. Republic of Tunisia, ICSID Case No. ARB/04/12, Decision on Jurisdiction, 18
February 2011, para. 175.
102
AWG Group Ltd v Argentine Republic, UNCITRAL, Decision on Jurisdiction, 3 August 2006, para. 59.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 20 -

However, following Maffezini, there has been a fragmentation in the jurisprudence as other
tribunals have reached precisely the opposite conclusion.103 Thus in its 2011 report, the
ILC noted that, in relation to the determination of the scope of the MFN treatment, ‘that
there were many ways in which investment tribunals had framed the application of the
ejusdem generis principle, and even within some decisions different approaches had been
taken’.104 However, in spite of its mandate to progressively develop the law, the divergence
of opinions was so great that the ILC Study Group opted ‘not to attempt to decide between
the conflicting views of investment tribunals over the application of MFN clauses to dis-
pute settlement provisions’ because ‘to conclude that one tribunal was right and another
wrong would simply insert the Commission as just another voice in an ongoing debate.’ 105

The approach of the Tribunal in Tecmed was notably more restrictive, as it held that mat-
ters ‘directly linked to the identification of the substantive protection regime applicable to
the foreign investor … as well as to the access of the foreign investor to the substantive
provisions of such regime’ are determining factors for the acceptance of the treaty.106 As a
result, such matters must be specifically negotiated by the Contracting Parties and their ap-
plication cannot be impaired by the ejusdem generis principle in the MFN clause. The
Tecmed approach has been followed by subsequent ICSID tribunals, such as in Plama and
Salini, thus reversing the approach taken in Maffezini: unless it can be proven that the par-
ties to a treaty explicitly foresaw and intended the incorporation of certain dispute settle-
ment provisions, then the MFN clause cannot be used to circumvent this choice.107 In Pla-
ma and Salini, the Tribunal held that it was not possible to apply the MFN provision to
dispute settlement provisions unless it was clear that this was the intention of the parties.108
Similarly, in Adem Dogan, it was held that the ejusdem generis principle could not be ap-
plied to the term ‘shares and other kinds of company interests’ in a BIT, as the principle

103
For example, Salini Costruttori S.p.A. and Italstrade S.p.A. v The Hashemite Kingdom of Jordan (Deci-
sion on Jurisdiction, 15 November 2004) ICSID Case No ARB/02/13; Plama v Bulgaria [Decision on Juris-
diction 8 February 2005] paras 183–227; Vladimir Berschader & Moïse Berschader v Russian Federation
(Award, 21 April 2006) SCC Case No. 080/2004; Telenor Mobile Communications A.S. v Republic of Hun-
gary (Award, 13 September 2006) ICSID Case No ARB/04/15; Wintershall Aktiengesellschaft v Argentine
Republic (Award, 8 December 2008) ICSID Case No. ARB/04/14; Austrian Airlines v Slovak Republic (Final
Award, 9 October 2009) UNCITRAL; ICS Inspection and Control Services Ltd v Argentina [Award of 10
February 2012] paras 243–327). See Alejandro Faya Rodriguez, ‘The Most-Favored-Nation Clause in Inter-
national Investment Agreements – A Tool For Treaty Shopping’ (2008) 25 Journal of International Arbitra-
tion 89, 90; Zachary Douglas, The International Law of Investment Claims (CUP 2009); Christer Söderlund,
‘Most Favoured Nation (MFN) Clauses in Investment Treaties’, in Miguel Ángel Fernández-Ballesteros and
David Arias (eds), Liber Amicorum Bernardo Cremades (Wolkers Kluwer 2010) 1121-1130, 1122; Zachary
Douglas, ‘The MFN Clause in Investment Arbitration Treaty Interpretation Off the Rails’ (2011) 2 Journal of
International Dispute Settlement 97, 98-99; Christoph Schreuer, ‘Investments, International Protection’ (June
2013), Max Planck Encyclopedia of Public International Law (online), para.75.
104
Report of the International Law Commission, Sixty-third session (26 April-3 June and 4 July-12 August
2011) GAOR, 66th session, Supplement No. 10, UN Doc. A/66/10, para. 352.
105
ILC, Final Report of the Study Group on the Most-Favoured-Nation clause, Yearbook of the International
Law Commission, 2015, vol. II (Part Two) para. 8.
106
Técnicas Medioambientales Tecmed SA v United Mexican States [Award of 29 May 2003] para. 69.
107
Plama Consortium Limited v Republic of Bulgaria [Decision on Jurisdiction of 8 February 2005] para.
223; see also Salini Costruttori SpA and Italstrade SpA. v Hashemite Kingdom of Jordan [Decision of the
Tribunal on Jurisdiction of 29 November 2004] paras 102–19.
108
Alejandro Faya Rodriguez, ‘The Most-Favored-Nation Clause in International Investment Agreements –
A Tool For Treaty Shopping’ (2008) 25 Journal of International Arbitration 89, 93.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 21 -

only applies ‘when general words follow special words … No general words in this case
precede the words ‘other kinds of company interests. There is no genus or class established
by an enumeration of specifics’.109

The application of the ejusdem generis principle has also been subject to a number of dis-
senting opinions in cases where the majority held that an MFN clause could be applied to
dispute settlement procedures. Thus, although the majority in Impregilo allowed the appli-
cation of MFN clauses to jurisdictional requirements, Stern noted in her dissenting opinion
the ‘great dangers’ of allowing this to occur.110 As well as expressing concerns as to the
implications of Maffezini for policy reasons, she argued that ejusdem generis should pre-
vent MFN clauses from resulting in the importation of jurisdictional treatment from a
third-party treaty,111 as it was necessary to distinguish between the substantive elements of
a treaty and its jurisdictional elements, inter alia if ‘the jurisdictional treatment requires a
supplementary condition in order to be granted to the investor’.112 Stern contended that ‘an
MFN clause can only concern the rights that an investor can enjoy, it cannot modify the
fundamental conditions for the enjoyment of such rights’.113

In a more evasive approach, the panel in Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v
Pakistan held that it was not necessary to examine the application of the ejusdem generis
principle to the treaty in question, as the wording of the treaty was clear.114 Another con-
trasting approach was taken in Daimler, where the ICSID Tribunal stated that:

The application of the ejusdem generis rule cannot on its own categorically exclude
international dispute resolution from the potential ambit of the … BIT’s MFN claus-
es. Nor, however, can it demonstrate that the ambit of the Treaty’s MFN clauses nec-
essarily includes international dispute resolution. The ejusdem generis rule merely
identifies the outer limits of the clauses’ field of application; it cannot tell us which
particular subject matters, within that outer limit, the clauses were originally intend-
ed to cover.115

As such, the application of the ejusdem generis principle did not prima facie exclude the
applicability of the MFN clause to dispute settlement, a question which could only be an-
swered through examining the intentions of the parties by recourse to the meaning of the
specific MFN clause in dispute in light of their wording and context.116

109
Adem Dogan v. Turkmenistan, ICSID Case No. ARB/09/9, Decision on Annulment, 15 January 2016,
para. 118.
110
Robin Geiβ and Meinhard Hilf, ‘Most-Favoured-Nation Clause’ (July 2014), Max Planck Encyclopedia of
Public International Law (online), para. 32.
111
Impregilo S.p.A. v. Argentine Republic, ICSID Case No. ARB/07/17, Concurring and Dissenting Opinion
of Professor Brigitte Stern, 21 June 2011.
112
Ibid, para. 45.
113
Ibid, para. 47.
114
Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v Islamic Republic of Pakistan, ICSID Case No.
ARB/03/29, Award, 27 August 2009, para. 159.
115
Daimler v Argentina, ICSID Case No. ARB/05/01, Award, 22 August 2012, para. 215.
116
Ibid, para. 216.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 22 -

There is also another approach – beyond a clear denial of the applicability of MFN clauses
to dispute settlement procedures – namely that it is not possible to determine in advance
whether it is possible to apply MFN clauses to jurisdictional or procedural issues, and that
each case will need to be resolved in a sui generis manner according to the formulation of
the treaties involved.117 In Renta 4, the Tribunal recalled the conclusions in Ambatielos,
stating that while ‘[i]t is undoubtedly fair to compare BITs for the purpose of assessing
compliance with promises of MFN treatment given their congruent objective: the promo-
tion and protection of investments. Yet such a general statement is insufficient to decide
any particular case. It is a matter of the wording of the relevant instruments’,118 concluding
that previous precedents on the application of MFN clauses to dispute settlement proce-
dures are thus of limited relevance for any new disputes that arise under different BITs or
agreements, thus requiring a ‘BIT-by-BIT’ approach.119 Although generally favourable on
the applicability of ejusdem generis as a principle in order to resolve the question of the
applicability of an MFN clause and the scope thereof,120 the Tribunal nonetheless conclud-
ed that – for the specific situation under examination – that the BIT ‘cannot be read to en-
large the competence of the present Tribunal’.121

The decision in Maffezini also led to a number of reactions from States, in particular from
several Latin American States, to the effect that they have issued interpretative declarations
of existing agreements stipulating that they understand the MFN clause not to extend to
matters of dispute settlement, or in the negotiation of new agreements that this is not the
case.122 Nonetheless, the division in the jurisprudence has now been, for the most part, re-
solved, with the conclusion of the debate being that MFN clauses do not automatically ap-
ply to dispute resolution provisions.123 Tribunals have generally been lenient in extending
the application of MFN clauses to pre-arbitral requirements, but have mostly ‘balked at the
wholesale substitution of one dispute resolution option for another’,124 with some suggest-
ing that deference is thus being paid to the warning with regard to ‘public policy’ consider-
ations initially raised in Maffezini by limiting the application of the MFN clause in situa-
tions which would effectively result in the extension of jurisdiction.125 Moreover, there is a

117
Zachary Douglas, ‘The MFN Clause in Investment Arbitration Treaty Interpretation Off the Rails’ (2011)
2 Journal of International Dispute Settlement 97, 98-99, citing Siemens A.G. v. Argentine Republic (Decision
on Jurisdiction, 3 August 2004) ICSID Case No. ARB/02/8; RosInvestCo UK Ltd v Russian Federation
(Award on Jurisdiction, October 2007) SCC Case No V079/2005; Renta 4 S.V.S.A. et al v Russian Federa-
tion (Award on Preliminary Objections, 20 March 2009) SCC Case No 024/2007.
118
Quasar de Valors SICA S.A. and others (formerly Renta 4 S.V.S.A. and others) v Russian Federation, SCC
Case No. 24/2007, Award on Preliminary Objections, 20 March 2009, para. 90.
119
Ibid, para. 94.
120
Ibid, para. 100.
121
Ibid, para. 119.
122
William Ahern, José Joaquín Caicedo, Alejandro López Ortiz, ‘Two Solutions For One Problem: Latin
America’s Reactions to Concerns’ (2016) 27 Spain Arbitration Review 9, 43.
123
Christer Söderlund, ‘Most Favoured Nation (MFN) Clauses in Investment Treaties’, in Miguel Ángel Fer-
nández-Ballesteros and David Arias (eds), Liber Amicorum Bernardo Cremades (Wolkers Kluwer 2010)
1121-1130, 1122.
124
Ibid 1124-1125.
125
Alejandro Faya Rodriguez, ‘The Most-Favored-Nation Clause in International Investment Agreements –
A Tool For Treaty Shopping’ (2008) 25 Journal of International Arbitration 89, 94-95.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 23 -

rising trend in newer BITs to make explicit reference to the provisions to which the MFN
treatment applies: if dispute settlement is not expressly listed (which it most often is not),
the drafters did not intend for it to fall under the MFN clause’s scope.126

4.2. Beyond MFN clauses


Outside the MFN context, there are other instances where ejusdem generis has been ap-
plied to restrict the scope of a treaty provision by reference to its subject matter. For exam-
ple, in the Golder Case,127 the European Court of Human Rights (‘ECtHR’) held that a
former inmate had been denied his rights under Article 6(1) of the European Convention
on Human Rights (‘ECHR’)128 when the UK Home Secretary refused him permission to
consult a lawyer whilst in prison. The prisoner believed that he had been wrongly accused
of assault in prison and that this had contributed to him being refused parole. He wished to
be advised as to the possibility of taking civil action for libel in respect of the accusation of
assault. This request was denied by the Home Secretary.

The ECHR provides in Article 6(1):

In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law. Judgment shall be pro-
nounced publicly but the press and public may be excluded from all or part of the trial
in the interests of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life of the parties so re-
quire, or to the extent strictly necessary in the opinion of the court in special circum-
stances where publicity would prejudice the interests of justice.

The ECtHR held (nine votes to three) that a right to consult a lawyer as a means of access-
ing a court was implied in Article 6(1). Sir Gerald Fitzmaurice dissented on this point, re-
lying in part on the ejusdem generis rule. He wrote that if one were to read something into
the text that is not expressed in the text itself – which was the case for the right of access to
court – then any such ‘implications should be, or should relate to, something of the same
order, or be in the same category of concept, as figures in the text itself’. 129 According to
Sir Fitzmaurice, that was not what the Court had done, and he concluded that the Court had
incorrectly applied the canon in its judgment. Sir Fitzmaurice did not engage in a sensu
stricto application of ejusdem generis as there was no list of specific items followed by a
general item. Instead he relied on the literal Latin meaning of the phrase, ‘of the same kind
or class’, to distinguish between the subject matter of Article 6(1), namely procedural
rights during a hearing, and the substantive right of access to courts.

126
UNCTAD (ITE/IIT/2006/5), Bilateral Investment Treaties 1995-2006: Trends in Investment Rulemaking,
39-42.
127
European Court of Human Rights, 21 February 1975, 57 International Law Reports 200.
128
Convention for the Protection of Human Rights and Fundamental Freedoms (signed 4 November 1950,
entry into force 3 September 1953) 213 UNTS 211.
129
European Court of Human Rights, 21 February 1975, 57 International Law Reports, 257-8.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 24 -

Moving beyond the ECtHR to the jurisprudence of ICSID tribunals, in Helnan Hotels v.
Egypt, the Tribunal rejected arguments made by the claimant relying on ejusdem gene-
ris.130 Under the applicable BIT, the Tribunal had no jurisdiction ratione temporis in re-
spect of ‘divergences or disputes’ which arose prior to the BIT’s entry into force on 29
January 2000. The claimant sought to argue that the terms ‘divergence’ and ‘dispute’
should be construed ejusdem generis (of a like nature), which would have the effect of cur-
tailing the meaning of ‘divergence’. This was important to the claimant’s case because the
parties had disagreements as far back as 1993 which if considered ‘divergences’ would
have excluded the dispute from the Tribunal’s jurisdiction. The Tribunal decided as fol-
lows on this point:131

The Arbitral Tribunal cannot follow the Claimant’s interpretation in that regard and
agrees with the Respondent that, whenever possible, terms must be interpreted literal-
ly and given practical effect, which excludes redundancy. As the parties to the Treaty
referred both to “divergence” and “dispute”, it must be assumed that they were not
giving the same meaning to these two distinct terms.

The claimant, Helnan Hotels, relied on the ejusdem generis canon in an attempt to alter the
ordinary meaning of one term by reference to a second term appearing beside it. In this
sense, the canon is used to signify the similarity in subject-matter of two terms and not, in
its strict application, to narrow the meaning of a general term which follows more specific
terms. The Tribunal rejected this view, preferring to give ‘divergence’ an independent
meaning on the basis of the effet utile rule of interpretation. Nevertheless, the Tribunal ul-
timately determined that it had jurisdiction as the divergences that originated prior to 29
January 2000 were of a different character to those which arose subsequently.

In Desert Line Projects LLC v Republic of Yemen, the Tribunal was confronted with a ju-
risdictional challenge based on the ejusdem generis rule. The respondent argued that the
applicant, Desert Line Projects LLC, a construction company from Oman operating within
Yemen, did not benefit from the provisions of the BIT between Yemen and Oman as it did
not constitute an ‘investment’ in the sense of Article 1(1) of the BIT. This Article stipulat-
ed that investments needed to be ‘accepted, by the host Party, as an investment according
to its laws and regulations, and for which an investment certificate is issued’.132 Yemen
contended that it had not ‘accepted’ the investment, inter alia because Desert Line Projects
had not registered their investment under Yemeni Investment Law (YIL) No. 22 of 1991,
thus disqualifying it from invoking the BIT and because no investment certificate had been
issued pursuant to the requirements stipulated in the YIL. Desert Line Projects held, in turn
that ‘Art. 1(1) does not refer to the YIL; if the Contracting States had wanted to define the

130
Helnan Hotels v. Egypt, Decision on Jurisdiction, ICSID Case No. ARB/05/19, 17 October 2006 (2006)
17 ICSID 258.
131
Ibid, 279.
132
Desert Line Projects LLC v Republic of Yemen, ICSID Case No. ARB/05/17, Award, 6 February 2008,
para. 92.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 25 -

meaning of “laws and regulations” by reference to the YIL, they would have done so ex-
pressly’.133 The same held for the type of registration required by Article 1(1) of the BIT,
as there was no evidence that the registration referred to in the BIT was that which was re-
quired for very particular purposes for the YIL.

In the end, the Tribunal decided that ‘[t]he objection to the effect that the Claimant’s in-
vestment was never “accepted by [the Respondent] as an investment according to its laws
and regulations” is as unpersuasive as it is unattractive’,134 as if the two States had intended
such a meaning they would have referred to the YIL explicitly in the BIT. In relation to the
certificate, the Tribunal stated that ‘[i]t is striking … that the notion of “investment certifi-
cate,” as opposed to that of “accepted”, is not qualified by the words “according to its laws
and regulations.” This means that the certificate requirement falls to be interpreted and un-
derstood in a general sense, in light of the objectives of the BIT’.135 As a result, it was not
considered necessary for the certificate to have been issued pursuant to the YIL require-
ments. The Tribunal concluded that its

conclusions with respect to both the “acceptance” and the “certificate” issues are
significantly bolstered by the consideration that the BIT is not ejusdem generis with
the YIL, and therefore has no natural obedience to the dictates or qualifications of
the latter. The YIL promotes investments from any foreign sources by granting privi-
leges and tax and customs incentives, subject to licenses issued according to the pro-
visions of that Law. The BIT creates an entirely separate legal regime, applicable in
Yemen only to Omani investors.136

In sum, outside the context of MFN clauses, the ejusdem generis principle has occasionally
been applied sensu latu by human rights courts and investment tribunals in a variety of
contexts, to interpret both jurisdictional and substantive provisions.

5. Conclusions
The ejusdem generis and noscitur a sociis principles serve as an aid to interpret or give ef-
fect to a phrase containing some form of non-exhaustive summary or a broader category
that has to be defined in light of the object and purpose of the treaty in which it is incorpo-
rated. Unlike the noscitur a sociis principle, the ejusdem generis principle has ‘travelled’
from the domestic legal order (mainly, but not solely, within common law jurisdictions)
into the international legal realm, where it is frequently referred to by a wide range of in-
ternational courts and tribunals notwithstanding a common lack of consensus concerning
its exact scope or the modalities of its application. Despite the number of references to it,
and with the exception of the interpretation of MFN clauses, ejusdem generis is not an in-
fluential canon of construction in most areas of international law. A fortiori, the noscitur a
sociis canon has apparently never been explicitly applied at the international level. For this
133
Ibid, para. 94.
134
Ibid, para. 99.
135
Ibid, para. 107.
136
Ibid, para. 121.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 26 -

reason, this Chapter focused on analysing, first, how the ejusdem generis canon developed
under municipal law and how it has been received and acted upon by judges and commen-
tators; second, how it is applied sensu stricto under international law; and third, how its
international application sensu latu is being adapted and expanded upon.

The sensu stricto use of the ejusdem generis principle refers to those occasions where it is
applied to interpret a general term which is preceded by specific examples from which it is
possible to deduce a genus. This Chapter analysed the relevant case law of a range of in-
ternational courts and tribunals, including the Permanent Court of International Justice, the
International Court of Justice, the Iran-US Claims Tribunal, international criminal tribunals
and courts applying international human rights law, and the WTO dispute settlement body.

Two points may be made in relation to the sensu stricto application of the ejusdem generis
principle. First, it is possible to look at the likely intentions of the treaty drafters in consid-
ering the applicability of ejusdem generis (with or without reference to the travaux prépa-
ratoires), as Lord Steyn did with regard to the Refugee Convention in Islam v. Secretary of
State for the Home Department.137 In this way, the ejusdem generis principle is made a
‘servant’ by confirming the appropriateness of applying the canon in a particular context,
where its effect was foreseen by the drafters. This is a way of reducing the risk that the
drafters did not intend to create a provision to which ejusdem generis would apply. Second,
ejusdem generis can be used to support a more expansive interpretation of a particular term
in a list; it need not always have a restrictive or conservative effect.

Whereas the sensu stricto application of the ejusdem generis principle focuses on the inter-
pretation of a phrase by reference to what is said in the preceding sentence or paragraph,
the object and purpose increasingly lie at the heart of the interpretative debate, leading to
the development of the ejusdem generis principle sensu latu. In these cases, ejusdem gene-
ris is used to understand whether a general word, or a right or obligation, in a treaty is of
the same kind or class as another, thereby comparing the subject matter of distinct rights or
obligations. In this broader use, the source of the genus can be the entire object and pur-
pose of the treaty in which the right or obligation is located.

This Chapter has first analysed the frequent use of the ejusdem generis principle sensu latu
serving as an aid to the interpretation and application of MFN clauses, in order to deter-
mine whether any more favourable treatment is being extended to persons or things in like
circumstances. The MFN clause ought not to be given an overly broad scope through reli-
ance on the ejusdem generis principle, particularly in the context of international invest-
ment law. This Chapter has proposed a three-part test, making the use of the ejusdem gene-
ris rule conditional upon finding identity of the type of parties, the subject-matter and the
applicable law. In the absence of specific and unequivocal guidance in the treaty, a narrow
interpretation of the ejusdem generis principle would allow interpreters to avoid outcomes
which the Contracting Parties could not have reasonably intended. This may be particularly
137
Islam v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Anoth-
er, ex parte Shah (England, House of Lords, 25 March 1999) 124 International Law Reports 476.

Electronic copy available at: https://ssrn.com/abstract=3334900


- 27 -

relevant in the debate concerning the application of MFN treatment to procedural rights
under dispute settlement clauses.

Ever since the Maffezini Tribunal held that ‘dispute settlement arrangements are inextrica-
bly related to the protection of foreign investors, as they are also related to the protection
of rights of traders under treaties of commerce’,138 debates have been raging as to whether
claimants should be able to ‘import’ more favourable dispute settlement provisions from
another treaty, via reliance on the MFN clause and the ejusdem generis principle. Whereas
tribunals have generally been willing to apply MFN clauses to pre-arbitral requirements,
they tend not to substitute one dispute settlement system with another, in order to avoid
what would essentially amount to an extension of jurisdiction. Moreover, there is a rising
trend in newer BITs to make explicit reference to the provisions to which the MFN treat-
ment applies: if dispute settlement is not expressly listed, the drafters did not intend it to
fall under the MFN clause’s scope.

Outside the context of MFN clauses, the ejusdem generis principle has occasionally been
applied sensu latu by human rights courts and investment tribunals in a variety of contexts,
to interpret both jurisdictional and substantive provisions. No general predictions can be
made as to the further development of the ejusdem generis principle - as aptly summarised
by the ILC: ‘the key question of ejusdem generis … has to be determined on a case-by-
case basis.’139

138
Emilio Agustín Maffezini v Kingdom of Spain, ICISD Case No. ARB/97/7, Decision on Jurisdiction, 25
January 2000, para. 54.
139
ILC, Final Report of the Study Group on the Most-Favoured-Nation clause, Yearbook of the International
Law Commission, 2015, vol. II (Part Two) para. 147.

Electronic copy available at: https://ssrn.com/abstract=3334900