International Law Commission

Analytical Guide to the Work of the International Law Commission

Most-favoured-nation clause (Part One)

Mandate

After discussing the possibility of considering the topic in 1964, the Commission in 1967 decided to place it on its programme of work.
Resolution 2272 (XXII) of 1 December 1967
The item was placed on the agenda of the Commission again in 2008

Studies undertaken by the Secretariat and Reports of the Secretary-General

25th session of the International Law Commission (1973)
- Decisions of national courts relating to the most-favoured-nation clause: digest prepared by the Secretariat
- A/CN.4/269 (in Yearbook, 1973, vol. II)
- ILC Report, A/9010/Rev.1 (A/28/10), 1973, chap. IV(A)(1), para. 111
Reports of the Working Group or Sub-Committee

Reports of the Special Rapporteur
- Account of the preparatory work undertaken by the Special Rapporteur on the topic and outline of the possible contents of a report to be presented.
  - Working paper by the Special Rapporteur, Mr. Endre Ustor (20th session of the ILC (1968))
  - A/CN.4/L.127 (in Yearbook, 1968, vol. II)
  - ILC Report, A/7209/Rev.1 (A/23/9), 1968, chap. IV, paras. 92–94
  - History of the most-favoured nation clause up to the Second World War.
    - First Report of the Special Rapporteur, Mr. Endre Ustor (21st session of the ILC (1969))
    - A/CN.4/213 (in Yearbook, 1969, vol. II)
    - ILC Report, A/7610/Rev.1 (A/24/10), 1969, chap. V, para. 89
    - Analytical survey of the views expressed in some cases dealt with by the International Court of Justice pertaining to the clause; information supplied by the international organizations.
      - Second Report of the Special Rapporteur, Mr. Endre Ustor (22nd session of the ILC (1970))
      - A/CN.4/228 and Add.1 (in Yearbook, 1970, vol. II)
      - ILC Report, A/8410/Rev.1 (A/26/10), 1971, chap. III(D), paras. 110–111
      - Five draft articles with commentaries, on the use of terms, the definitions of most-favoured-nation clause and most-favoured-nation treatment, the legal basis of most-favoured-nation treatment, and the source of the right of the beneficiary State.
        
        Third Report of the Special Rapporteur, Mr. Endre Ustor (24th session of the ILC (1972))
        
        A/CN.4/257 and Add.1 (in Yearbook, 1972, vol. II)
        
        ILC Report, A/8710/Rev.1 (A/27/10), 1972, chap. IV(C), para. 74
        
        Three draft articles on presumption of unconditional character of the clause, the ejusdem generis rule and the acquired right of the beneficiary State.
        
        Fourth Report of the Special Rapporteur, Mr. Endre Ustor (25th session of the ILC (1973))
        
        A/CN.4/266 (in Yearbook, 1973, vol. II)
        
        ILC Report, A/9010/Rev.1 (A/28/10), 1973, chap. IV(A)(1), para. 106
        
        The effect of an unconditional most-favoured-nation clause and of a most-favoured-nation clause conditional on material reciprocity; the observance of the laws and regulations of the granting State; the scope of the clause regarding persons and things; the national treatment clause; national treatment and national treatment in federal States; the effect of an unconditional national treatment clause and of a national treatment clause conditional on material reciprocity; the right of the beneficiary State under a most-favoured-nation clause to national treatment; the cumulation of national treatment and most-favoured-nation treatment; and the commencement and the termination or suspension of the functioning of a most-favoured-nation clause. Thirteen draft articles (arts. 6 bis, ter and quater; 7 bis; 9–10; 10 bis; and 11–16).
        
        Fifth Report of the Special Rapporteur, Mr. Endre Ustor (26th session of the ILC (1974))
        
        A/CN.4/280 (in Yearbook, 1974, vol. II(1))
        
        ILC Report, A/9610/Rev.1 (A/29/10), 1974, chap. VI(B), para. 161
        
        Additional comments on past draft articles; discussion of the case of customs unions and similar associations of States and of different levels of States' economic development.
        
        Sixth Report of the Special Rapporteur, Mr. Endre Ustor (27th session of the ILC (1975))
        
        A/CN.4/286 and Corr.1 (in Yearbook, 1975, vol. II)
        
        ILC Report, A/10010/Rev.1 (A/30/10), 1975, chap. IV(A)(1), paras. 96–97
        
        Proposals concerning certain articles previously adopted and five additional draft articles with commentaries, dealing with the relationship of the cases of State succession, State responsibility and outbreak of hostilities; the non-retroactivity of the draft articles; the freedom of the parties to draft the clause and restrict its operation; and most-favoured-nation clauses in relation to treatment extended to land-locked States. It also contained a chapter entitled "Provisions in favour of developing States" and one entitled "Settlement of Disputes".
        
        Seventh Report of the Special Rapporteur, Mr. Endre Ustor (28th session of the ILC (1976))
        
        A/CN.4/293 and Add.1 (in Yearbook, 1976, vol. II(1))
        
        ILC Report, A/31/10, 1976, chap. II(A)(1), paras. 32–33
        
        Four sections: Section I — Introduction, Section II — Comments on the draft articles as a whole, Section III — Comments on individual provisions of the draft articles, Section IV — The problem of the procedure for the settlement of disputes relating to the interpretation and application of a Convention based on the draft articles.
        
        Report of the Special Rapporteur, Mr. Nikolai Ushakov (30th session of the ILC (1978))
        
        A/CN.4/309, Add.1 and Add.2 (in Yearbook, 1978, vol. II(1))
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 45
        
        Reports of the Drafting Committee
        
        25th session of the International Law Commission (1973)
        
        Texts adopted by the Drafting Committee: arts.1–7
        
        A/CN.4/L.203 (in Yearbook, 1973, vol. I, 1238th meeting (2 July 1973))
        
        ILC Report, A/9010/Rev.1 (A/28/10), 1973, chap. IV(A)(1), paras. 107–108
        
        27th session of the International Law Commission (1975)
        
        Texts adopted by the Drafting Committee: arts. 6 [8], 6 bis [9], 6 ter [10], 7 [11], 7 bis [12], 6 ter/bis [13], 8 [14], 8 bis [15], 13 [16], 14 [17], 15 [18], 16 [19], 6 quater [20], and 0 [21]
        
        A/CN.4/L.238 (in Yearbook, 1975, vol. I, 1352nd meeting (17 July 1975))
        
        ILC Report, A/10010/Rev.1 (A/30/10), 1975, chap. IV(A)(1), para. 97
        
        28th session of the International Law Commission (1976)
        
        Entire set of draft articles resulting from decisions taken by the Drafting Committee at the 28th session
        
        A/CN.4/L.244 (mimeograph)
        
        ILC Report, A/31/10, 1976, chap. II(A)(1), para. 33
        
        30th session of the International Law Commission (1978)
        
        Texts adopted by the Drafting Committee: title of the draft and articles 1–29
        
        A/CN.4/L.280 (in Yearbook, 1978, vol. I, 1521st meeting (19 July 1978))
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 45
        
        Comments by Governments
        
        30th session of the International Law Commission (1978)
        
        Comments of Member States, organs of the United Nations, specialized agencies and other intergovernmental organizations on the draft articles on the most-favoured-nation clause adopted by the International Law Commission at its twenty-eighth session
        
        A/CN/4/308, Add.1, Add.1/Corr.1 and Add.2 (in ILC Report, A/33/10, 1978, annex)
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 43
        
        Other
        
        27th session of the International Law Commission (1975)
        
        Additional article submitted by the Special Rapporteur
        
        New article proposed by Mr. Reuter
        
        A/CN.4/L.228 and Rev.1 (in Yearbook, 1975, vol. I, 1341st and 1342nd meetings (1 and 2 July 1975))
        
        ILC Report, A/10010/Rev.1 (A/30/10), 1975, chap. IV(A)(1), para. 97
        
        A/CN.4/L.229 and Corr.1 (in Yearbook, 1975, vol. I, 1342nd meeting (2 July 1975))
        
        28th session of the International Law Commission (1976)
        
        Alternative drafts for a Customs union and free-trade area exception suggestion by Mr. Hambro
        
        A/CN.4/L.242 (in Yearbook, 1976, vol. II(1))
        
        30th session of the International Law Commission (1978)
        
        Article A proposed by Mr. Reuter
        
        A/CN/4/L.264 (in ILC Report, A/33/10, 1978, chap. II(A)(3), para. 55)
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 44
        
        Article 21 ter proposed by Mr. Reuter
        
        A/CN/4/L.265 (in ILC Report, A/33/10, 1978, chap. II(A)(3), para. 55)
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 44
        
        Article 21 bis proposed by Mr. Njenga
        
        A/CN.4/L.266 (in Yearbook, 1978, vol. I, 1494th meeting (6 June 1978))
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 44
        
        Article 23 bis proposed by Sir Francis Vallat
        
        A/CN.4/L.267 (in ILC Report, A/33/10, 1978, chap. II(A)(4), para. 57)
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 44
        
        Statement made by the representative of the UNCTAD secretariat at the 1497th meeting, at the request of the Commission
        
        A/CN/L.268 (ILC Report, A/33/10, 1978, annex)
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 43
        
        Article 28 proposed by Mr. Tsuruoka
        
        A/CN.4/L.270 (in ILC Report, A/33/10, 1978, chap. II(A)(5)(a), para. 68)
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 44
        
        Text of article 23 bis [renumbered article 24] adopted by the Commission at its 1520th meeting
        
        A/CN.4/L.281 (in Yearbook, 1978, vol. I, 1520th meeting (18 July 1978))
        
        ILC Report, A/33/10, 1978, chap. II(A)(1), para. 45
        
        Reports of the International Law Commission
        
        Report of the International Law Commission on the work of its nineteenth session, 8 May to 14 July 1967
        
        Decided to take up the topic. Appointed Mr. Endre Ustor as Special Rapporteur.
        
        ILC Report, A/6709/Rev.1 (A/22/9), 1967, chap. III(A)(4), para. 48
        
        Yearbook, 1967, vol. II
        
        Report of the International Law Commission on the work of its twentieth session, 27 May to 2 August 1968
        
        Discussed the scope of the topic. The Commission instructed the Special Rapporteur not to confine his studies to the domain of international trade but to explore the major fields of application of the clause. The Commission considered that it should clarify the scope and effect of the clause as a legal institution in the context of all aspects of its practical application.
        
        Discussion in plenary: 975th and 976th meetings (15 and 16 July 1968); 979th meeting (22 July 1968)
        
        ILC Report, A/7209/Rev.1 (A/23/9), 1968, chap. IV, paras. 92–94
        
        Yearbook, 1968, vol. II
        
        Yearbook, 1968, vol. I
        
        Report of the International Law Commission on the work of its twenty-first session, 2 June to 8 August 1969
        
        Considered the first report of the Special Rapporteur. The Commission instructed the Special Rapporteur to prepare next a study having regard, inter alia, to three cases dealt with by the International Court of Justice relevant to the clause.
        
        Discussion in Plenary: 1036th meeting (5 August 1969)
        
        ILC Report, A/7610/Rev.1 (A/24/10), 1969, chap. V, paras. 85–89
        
        Yearbook, 1969, vol. II
        
        Yearbook, 1969, vol. I
        
        Report of the International Law Commission on the work of its twenty-second session, 4 May to 10 July 1970
        
        The Special Rapporteur submitted his second report. Despite resolutions 2501 (XXIV) and 2634 (XXV) of the General Assembly encouraging the Commission to continue its study, the Commission found itself obliged to postpone the consideration of the topic owing to lack of time.
        
        ILC Report, A/8010/Rev.1 (A/25/10), 1970, chap. V(E), para. 90
        
        Yearbook, 1970, vol. II
        
        Report of the International Law Commission on the work of its twenty-third session, 26 April to 30 June 1971
        
        On the suggestion of the Special Rapporteur the Commission requested the Secretariat to prepare on the basis of collections of law reports available to it and of the information to be requested from governments a "Digest of decisions of national courts relating to the most-favoured-nation clauses".
        
        ILC Report, A/8410/Rev.1 (A/26/10), 1971, chap. III(D), paras. 106–113
        
        Yearbook, 1971, vol. II(1)
        
        Report of the International Law Commission on the work of its twenty-fourth session, 2 May to 7 July 1972
        
        The Special Rapporteur submitted a third report containing five articles, with commentaries, on the use of terms, the definitions of most-favoured-nation clause and most-favoured-nation treatment, the legal basis of most-favoured-nation treatment, and the source of the right of the beneficiary State. The Commission was unable, again for lack of time, to consider the report during the session. At the suggestion of the Special Rapporteur, the Commission requested the Secretariat to prepare a study on the most-favoured-nation clauses included in the treaties published in the United Nations Treaty Series.
        
        ILC Report, A/8710/Rev.1 (A/27/10), 1972, chap. IV(C), paras. 74–75
        
        Yearbook, 1972, vol. II
        
        Report of the International Law Commission on the work of its twenty-fifth session, 7 May to 13 July 1973
        
        The Special Rapporteur presented his fourth report containing three more draft articles, with commentaries, dealing with the presumption of unconditional character of the clause, the ejusdem generis rule and the acquired rights of the beneficiary State. It considered the Special Rapporteur's third report and adopted draft articles 1–7 together with commentaries on first reading.
        
        Discussion in Plenary: 1214th, 1215th, 1216th, 1217th and 1218th meetings (25 May to 1 June 1973), and 1238th meeting (2 July 1973)
        
        ILC Report, A/9010/Rev.1 (A/28/10), 1973, chap. IV, paras. 93–123
        
        Yearbook, 1973, vol. II
        
        Yearbook, 1973, vol. I
        
        Report of the International Law Commission on the work of its twenty-sixth session, 6 May to 26 July 1974
        
        The Special Rapporteur presented his fifth report. The Commission was unable to consider the topic owing to a lack of time.
        
        ILC Report, A/9610/Rev.1 (A/29/10), 1974, chap. VI(B), para. 161
        
        Yearbook, 1974, vol. II(1)
        
        Report of the International Law Commission on the work of its twenty-seventh session, 5 May to 25 July 1975
        
        The Commission considered the fourth, fifth and sixth reports of the Special Rapporteur, and adopted draft articles 8–21 with commentaries on first reading.
        
        Discussion in Plenary: 1330th, 1331st, 1332nd, 1333rd, 1334th, 1335th, 1336th, 1337th, 1338th, 1339th, 1340th, 1341st, 1342nd, 1343rd, and 1344th, meetings (16 June to 4 July 1975), and 1352nd, and 1353rd meetings (17 and 21 July 1975)
        
        ILC Report, A/10010/Rev.1 (A/30/10), 1975, chap. IV, paras. 77–119
        
        Yearbook, 1975, vol. II
        
        Yearbook, 1975, vol. I
        
        Report of the International Law Commission on the work of its twenty-eighth session, 3 May to 23 July 1976
        
        The Commission had before it the seventh report of the Special Rapporteur. The Commission adopted on first reading draft articles 21 to 27 as well as article 2(e) with commentaries. It decided to transmit the provisional draft articles, through the Secretary-General, to Governments of Member States for their observations.
        
        Discussion in Plenary: 1377th, 1378th, 1379th, 1380th, 1381st, 1382nd, 1383rd, 1384th, 1385th, 1386th, 1387th, 1388th and 1389th meetings (26 May to 14 June 1976), and 1404th meeting (8 July 1976)
        
        ILC Report, A/31/10, 1976, chap. II, paras. 10–60
        
        Yearbook, 1976, vol. II(2)
        
        Yearbook, 1976, vol. I
        
        Report of the International Law Commission on the work of its twenty-ninth session, 9 May to 29 July 1977
        
        The Commission appointed Mr. Nikolai A. Ushakov as Special Rapporteur. He was required to present to the Commission at its next session a report on the topic taking into account the comments received from both Member States and United Nations organs and interested intergovernmental organizations.
        
        ILC Report, A/32/10, 1977, chap. V(A), paras. 77–78
        
        Yearbook, 1977, vol. II(2)
        
        Report of the International Law Commission on the work of its thirtieth session, 8 May to 28 July 1978
        
        The Commission adopted the final text of a thirty-article draft with commentaries and recommended that the General Assembly recommend it to Member States with a view to the conclusion of a convention.
        
        Discussion in Plenary:1483rd, 1484th, 1485th, 1486th, 1487th, 1488th, 1489th, 1490th, 1491st, 1492nd, 1493rd, 1494th, 1495th, 1496th, 1497th, 1498th, 1499th and 1500th meetings (22 May to 14 June 1978), 1505th and 1506th meetings (21 and 22 June 1978), and 1520th, 1521st, 1522nd and 1523rd meetings (18 to 21 July 1978)
        
        ILC Report, A/33/10, 1978, chap. II, paras. 15–74
        
        Yearbook, 1978, vol. II(2)
        
        Yearbook, 1978, vol. I
        
        General Assembly Action
        
        Resolution 2501 (XXIV) of 12 November 1969
        
        Recommended that the Commission continue its study of the most-favoured-nation clause.
        
        Resolution 2634 (XXV) of 12 November 1970
        
        Recommended that the Commission continue its study of the most-favoured-nation clause.
        
        Resolution 3495 (XXX) of 15 December 1975
        
        Recommended that the Commission should complete the first reading of the draft articles at its (the Commission's) twenty-eighth session (1976).
        
        Resolution 31/97 of 15 December 1976
        
        Welcomed the completion of the first reading of the draft articles and recommended that the Commission should conclude the second reading of them at its thirtieth session (1978) in the light of comments received from Member States, from organs of the United Nations which had competence on the subject-matter and from interested intergovernmental organizations.
        
        Resolution 32/151 of 19 December 1977
        
        Reiterated its recommendation contained in Resolution 31/97 of 15 December 1976.
        
        Final Outcome
        
        International Law Commission (30th session, 1978)
        
        Recommended the draft articles with a view to the conclusion of a convention.
        
        ILC Report, A/33/10, 1978, chap. II, para. 73
        
        Yearbook, 1978, vol. II(2)
        
        Resolution 33/139 of 19 December 1978
        
        Invited States, organs of the United Nations and interested intergovernmental organizations to submit written comments on the draft articles adopted by the Commission, on the provisions on which no decision was taken by the Commission and on the recommendation made by the Commission.
        
        Requested the Secretary-General to retierate his invitation to member States, organs of the United Nations which have competence in the subject-matter and interested intergovernmental organizations to submit comments on the report of the International Law Commission.
        
        Requested the Secretary-General to retierate his invitation to member States, organs of the United Nations which have competence in the subject-matter and interested intergovernmental organizations to submit comments on the report of the International Law Commission.
        
        Requested the Secretary-General to retierate his invitation to member States, organs of the United Nations which have competence in the subject-matter and interested intergovernmental organizations to submit comments on the report of the International Law Commission.
        
        Requested the Secretary-General to retierate his invitation to member States, organs of the United Nations which have competence in the subject-matter and interested intergovernmental organizations to submit comments on the report of the International Law Commission.
        
        Noted the complexity of codification or progressive development of the international law on most-favoured-nation clauses, and considered that additional time should be given to Governments for thorough study of draft articles and for determining their respective positions on the most appropriate agenda for future work. Decided to include the item in the provisional agenda of its forty-sixth session, in 1991.
        
        Having noted with appreciation the valuable work done by the Commission on the most-favoured-nation clauses, as well as the observations and comments of Member States, of organs of the United Nations, of the specialized agencies and of interested intergovernmental organizations, the Assembly decided to bring the draft articles on most-favoured-nation clauses, as contained in the Report of the Commission on the work of its thirtieth session, to the attention of Member States and interested intergovernmental organizations for their consideration in such cases and to the extent as they deemed appropriate.
        
        Codification Division, Office of Legal Affairs, © United Nations 2024

International Law Commission

Analytical Guide to the Work of the International Law Commission

Most-favoured-nation clause (Part One)

Mandate

Studies undertaken by the Secretariat and Reports of the Secretary-General

Reports of the Working Group or Sub-Committee

Reports of the Special Rapporteur

Reports of the Drafting Committee

Comments by Governments

Other

Reports of the International Law Commission

General Assembly Action

Final Outcome