Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law

2010 ◽  
pp. 151-182 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
Rule Of Law ◽  
Public Law ◽  
The Rule Of Law ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

scholarly journals Fair and Equitable Treatment Between the International and National Rule of Law

2019 ◽  
Vol 20 (4) ◽  
pp. 513-552 ◽  
Author(s):  
Velimir Živković
Keyword(s):  
Decision Making ◽  
Rule Of Law ◽  
International Investment ◽  
The Rule Of Law ◽  
International Investment Law ◽  
Investment Protection ◽  
National Rule ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Equitable Treatment

Abstract Promoting the rule of law is a potentially strong legitimating narrative for international investment law. Illustrating the interlinkage, the ubiquitous ‘fair and equitable treatment’ (FET) standard embodies distinctly rule of law requirements. But these requirements remain open-textured and allow understanding their meaning in either more ‘international’ or ‘national’ way. An ‘international’ understanding – detached from the host State’s vision on how the rule of law should look like – should remain dominant. But I argue that decision-making under the FET standard should also involve a systematic engagement with how these requirements would be understood in the host State’s law and how they were complied with from that perspective. Whilst not determinative for establishing a breach, this assessment better respects the expectations of the parties, strengthens the persuasiveness of findings and helps enhance the national rule of law as a key contributor to the ultimate goal of investment protection – economic development.

scholarly journals Ensuring Guarantees of the Rights of the Individual and the Inalienability of his Legal Status in the System of Legal Regulation

2021 ◽  
Vol 1 ◽  
pp. 21-29
Author(s):  
Alexander Vladimirovich Konovalov ◽  
Keyword(s):  
Rule Of Law ◽  
Legal Status ◽  
Legal Regulation ◽  
Public Law ◽  
Synergistic Action ◽  
The Rule Of Law ◽  
The Core ◽  
Private And Public ◽  
The Individual ◽  
Different Levels

The article is devoted to the analysis of the general principle of law — ensuring guarantees of individual rights and the inalienability of his legal status. According to the author, they are provided by the synergistic action of private and public law regulation. The article convincingly shows that private and public law is a single system of values with different levels of generalization of terms and different methodology. At the same time, it is the private legal mechanisms that are the basis, the core of the rule of law.

Burmah Oil Company v Lord Advocate [1965] AC 75, House of Lords

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Rule Of Law ◽  
Public Law ◽  
Case Note ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
Oil Company

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Burmah Oil Company v Lord Advocate [1965] AC 75, House of Lords. This case, read together with the War Damage Act 1965, outlines the capacity of Parliament to enact retroactive legislation. The case note discusses this in the context of the rule of law and parliamentary sovereignty. The document also includes supporting commentary from author Thomas Webb.

Forty Years of Public Law

1990 ◽  
Vol 24 (3-4) ◽  
pp. 341-355 ◽  
Author(s):  
David Kretzmer
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Common Law ◽  
Public Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Judicial Decisions ◽  
Comprehensive Survey ◽  
Intellectual Revolution ◽  
Do So

It would be impossible in a short lecture to give a comprehensive survey of all the changes that have occurred in the last forty years in that branch of law known as “Israel common law”. I will not, therefore, try to do so. Instead, I wish to single out the most distinctive phenomenon in this area of law. I refer to the conceptual/intellectual revolution in the outlook of the court regarding the nature of its judicial function. The original view, according to which the sole function of the court in the area of public law is to decide disputes between citizens and public authorities, has been abandoned and replaced by an outlook that views the court as an institution responsible for the legality of public administration, or, as the court itself is accustomed to defining the matter, for the rule of law.I shall divide my discussion into two parts. In the first part I will briefly discuss the prominent changes that have occurred in the judicial decisions regarding public law in recent years, and the judicial philosophy underlying these changes.

5. The politics of arbitration against governments

2021 ◽  
pp. 73-96
Author(s):  
Thomas Schultz ◽  
Thomas Grant
Keyword(s):  
Rule Of Law ◽  
Legal Rights ◽  
International Affairs ◽  
Government Investment ◽  
Investment Arbitration ◽  
Foreign Government ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Great Step ◽  
Full Protection

This chapter focuses on the most politically charged type of arbitration: arbitration between an investor and a foreign government. Investment arbitration marks a great step forward for rule of law in international affairs. A government does not escape responsibility by saying that its own law or courts have declared a given abuse against an investor to be lawful. Investment treaties set out substantive protections, such as fair and equitable treatment, full protection and security, and a guarantee against discriminatory expropriation. They give investors legal rights independent of domestic rules that an unfriendly government might have manipulated at the investor’s cost. The chapter then considers the emerging critique of investment arbitration.

15. Challenging Governmental Decisions: The Process

2021 ◽  
pp. 405-427
Author(s):  
Ian Loveland
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Administrative Law ◽  
Public Law ◽  
Family Practitioner ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
Technical Area ◽  
Legal Procedures

This chapter examines the legal procedures an applicant must follow when challenging a government decision and explores how court decisions in this nominally very technical area of administrative law can have profound implications for the meaning in practical terms of such broad constitutional principles as the rule of law and the sovereignty of Parliament. The chapter begins by examining the historical duality with English administrative law of the mechanism through which citizens might question the lawfulness of government action. The chapter then continues to cover the case of Barnard v National Dock Labour Board; the Order 53 reforms; the case of O’Reilly v Mackman (1982); the post-O’Reilly case law; the case of Roy v Kensington and Chelsea and Westminster Family Practitioner Committee; and public law principle as a defence in criminal proceedings.

Italian Experience of the Administrative Justice Functioning

2020 ◽  
Vol 27 (2) ◽  
pp. 27-46
Author(s):  
Anton Monaienko
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Legal System ◽  
Public Law ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
Italian Experience ◽  
Foreign Countries ◽  
Administrative Courts ◽  
Administrative Justice

The development of administrative legal proceedings in Ukraine determines the search for optimal ways to improve the system. Each country has its own strategy for the functioning of administrative justice, which depends on cultural, historical, national, integration processes, as well as the gradual formation of the legal system of a particular state. The main purpose of the study is to analyse the Italian experience of the administrative justice functioning. To achieve this goal, various theoretical methods are used. The method of legal forecasting allowed to identify areas for improvement of administrative justice in Ukraine. The author presents the concept and features of administrative justice operation in Italy in matters of protection of violated rights, freedoms and interests of individual and citizen by decisions, actions and omissions of the authorities; analyses the system and structure of administrative justice in Italy, its specialisation; features of some categories of public law disputes and delimitation of jurisdiction of administrative courts and general courts in resolving certain categories of administrative cases, features of their reading in administrative courts of Italy of first and appellate instance; powers of the Italian State Council in resolving public law disputes, and powers of quasi-judicial tribunals of Italy, which perform the functions of justice. It is revealed that the administrative courts of Italy are empowered with the rights to assess the activities of public administration. Based on the experience of other countries, including Italy, we can conclude that a well-built system of administrative justice can help protect the rights of Ukrainian citizens and the rule of law. But it is important not only to focus on foreign countries, but also to take into account the peculiarities of the legal system of Ukraine

scholarly journals Rule of Law and Its Guidelines and Indicators for Judiciary in Human Rights Issues

2016 ◽  
Vol 10 (1) ◽  
pp. 98
Author(s):  
Ebad Rouhi ◽  
Leila Raisi Dezaki ◽  
Mahmoud Jalali Karveh
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Public Law ◽  
Judicial System ◽  
The Rule Of Law ◽  
The Relationship ◽  
Domestic Level ◽  
Rights Issues

The rule of law is one of the very polemical and controversial concepts in the field of public law and political thoughts. This concept has been acclaimed in both international and domestic level and can be observed in the practice of the United Nations and many of states practically. In the light of the principle of the rule of law at the meantime ruling by law can be strengthened and also security and peace, development, democracy and human rights can be protected and promoted. The rule of law and human rights as two concepts with mutually interacting to each other has noteworthy great importance. An independent and impartial judiciary such as linkage has an important role in strengthening both of them.Human rights, separation of powers and judicial independence are regarded as some basis of the rule of law and as well as its consequence. Thus, in this regard rule of law has p very guidelines and indicators which some of them related to the judicial systems of states. In the light of exercise of these guidelines human rights are better protected and promoted.These instructions and guidelines generally are provided in international and regional human rights instruments to enforce in every sector of the state and especially for judges and judicial power to protection and promotion of human rights. This article investigates the relationship between rule of law and judicial system to introduce some measures and indicators of the rule of law to enforce them in the judiciary for better protection and promotion of human rights.

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