Part IV Guide to Key Substantive Issues, 20 Fair and Equitable Treatment: Have Its Contours Fully Evolved?

2018 ◽  
Author(s):  
Yannaca-Small Katia
Keyword(s):  
International Law ◽  
National Treatment ◽  
Foreign Investors ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Normative Content

The fair and equitable treatment (FET) standard is an ‘absolute’, or ‘non-contingent’, standard of treatment, i.e. a standard that states the treatment to be accorded in terms that have their own normative content, as contrasted with the ‘relative’ standards embodied in the ‘national treatment’ and ‘most-favoured-nation’ principles, which define the required treatment by reference to the treatment accorded to other investments in similar circumstances. The FET is the most often invoked treaty standard in investor-state arbitration, present in almost every single claim brought by foreign investors against host States. This chapter tackles the FET standard from two angles: its position in the international law context and the elements identified by arbitral tribunals as forming part of this standard (and their balance).

Part IV Law and Applicable Principles, 19 Principles of Investment Protection in International Mining Disputes

2017 ◽  
Author(s):  
Burnett Henry G ◽  
Bret Louis-Alexis
Keyword(s):  
Foreign Investment ◽  
Developing Economies ◽  
Most Favored Nation ◽  
National Treatment ◽  
Foreign Investors ◽  
Investment Protection ◽  
Secure Access ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Full Protection

In an effort to attract foreign investment many countries, especially developing economies, have created favorable investment conditions by setting up domestic and international guarantees for foreign investors. In addition to adopting foreign investment laws, many countries have concluded bilateral and multilateral investment treaties aimed at promoting and protecting foreign investment. These treaties provide a number of guarantees concerning foreign investment, which typically include the protection from expropriation; fair and equitable treatment (FET); full protection and security; the protection against arbitrary or discriminatory measures, national treatment, and most favored nation treatment; and, for some of them the observance of other undertakings entered into by contracting States with investors. This chapter examines each of these guarantees as well as the means to maximize investment protection and secure access to international arbitration.

3 Fair And Equitable Treatment

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Bilateral Investment Treaties ◽  
National Treatment ◽  
Standard Format ◽  
Foreign Investors ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Equitable Treatment ◽  
Full Protection

Like other bilateral investment treaties (BITs), Chinese BITs establish a set of general standards of treatment accorded to foreign investors by the host state. The most commonly found general standards of treatment include fair and equitable treatment (FET), (full) protection and security (PNS), most favoured nation treatment (MFN), and national treatment (NT). The first two belong to the group of non-contingent standards (or so-called “absolute standard of treatment”), whilst the latter two are forms of contingent standards (or “relative standards of treatment”). Absolute standards do not depend on treatment granted to other investors. In contrast, the relative standards are contingent on treatment given to other categories of investors, nationals of the host state in the case of NT and investors from third states for the MFN. This chapter begins with an examination of the FET standard, focusing on the different approaches of interpretations that have been developed in theory and in arbitration practice. It then analyzes the standard under Chinese BITs and assesses the implications of its standard format and any variations.

9 General Treatment Standards

2021 ◽  
Author(s):  
Salacuse Jeswald W
Keyword(s):  
International Law ◽  
International Investment ◽  
General Treatment ◽  
National Treatment ◽  
Treatment Standards ◽  
Strong Similarity ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Equitable Treatment ◽  
Full Protection

This chapter addresses the general standards of treatment in investment treaties. General treatment standards consist of two types: (a) absolute standards, which are not contingent upon specified factors, happenings, or government behaviour towards other investors or persons; and (b) relative standards, which are dependent upon the host government's treatment of other investments or investors. The chapter discusses the absolute and relative general treatment standards used most frequently in international investment treaties. These include full protection and security, fair and equitable treatment, minimum treatment according to international law, most-favoured-nation treatment, and national treatment. That these standards exist in one form or another in most investment treaties gives the treaties a strong similarity. It must also be acknowledged, however, that not all treaties include all of these general standards and that significant differences exist in the way individual treaties articulate them.

Fair and Equitable Treatment: Its Interaction with the Minimum Standard and Its Customary Status

2017 ◽  
Vol 1 (2) ◽  
pp. 1-82
Author(s):  
Patrick Dumberry
Keyword(s):  
International Law ◽  
Subsequent Development ◽  
Early 20Th Century ◽  
Direct Impact ◽  
Minimum Standard ◽  
Foreign Investors ◽  
Customary International Law ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Year 2000

AbstractThe book addresses two questions which have been debated by scholars in the last 20 years regarding the fair and equitable treatment (‘fet’) standard found inbits. It examines the interaction between the ‘minimum standard of treatment’ (mst) and thefetstandard. It first analyses the fascinating story of how the concept of themstemerged in the early 20th Century, its subsequent decline from 1960s until the 1990s and its surprising recent ‘resurrection’ in the year 2000. This evolution has had a direct impact on the emergence and subsequent development of thefetstandard and explains why States started referring to that standard instead of themstin their investment treaties. One question addressed in this book, is whetherfetis an autonomous standard of protection to be accorded to foreign investors, or is a mere reference to themstunder customary international law. Given the fact that thefetstandard is found in the overwhelming majority ofbits, another question which arose is whether or not it should now be considered in and of itself as a rule of customary international law.

scholarly journals Energy Charter Treaty – Standards of Investment Protection

2018 ◽  
Vol 24 (83) ◽  
pp. 52-83 ◽  
Author(s):  
Orsat Miljenić
Keyword(s):  
Broad Spectrum ◽  
Effective Means ◽  
National Treatment ◽  
Foreign Investors ◽  
Investment Protection ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Energy Charter Treaty ◽  
Equitable Treatment

Abstract The Energy Charter Treaty (ECT) in its Part III which regulates standards of protection guaranteed to foreign investors by the ECT States members, together with the Article 24 of the ECT, constitutes a kind of autonomous investment treatment within the ECT. The ECT provides for a very broad spectrum of standards of protection: fair and equitable treatment; most constant protection and security; prohibition of unreasonable or discriminatory measures; „umbrella clause”; national treatment; most favoured-nation standard and effective means to assert the claims. It can be said that at the time of its drafting the ECT enclosed all standards of protection as recognized in BITs and NAFTA. There have been more than 100 publicly known investment arbitration cases where the ECT was invoked, more than 30 of which concluded by arbitral awards. This comprehensive arbitral practice strongly influences the practice applying other IIAs and vice versa.

Part II The International Law Framework of Investment Protection and Political Risk, 6 The Substantive Law of Contemporary International Investment Protection

2020 ◽  
Author(s):  
Rubins Noah ◽  
Papanastasiou Thomas-Nektarios ◽  
Kinsella N Stephan
Keyword(s):  
International Law ◽  
Transition Economy ◽  
International Investment ◽  
Investment Protection ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Substantive Law ◽  
Equitable Treatment ◽  
National Investment ◽  
Domestic Law

Investors increasingly rely on the substantive protections provided in a growing number of investment treaties. This chapter covers the modern international law of investment protection as embodied in multilateral and bilateral investment treaties, including principles such as fair and equitable treatment, and full protection and security. The substantive protections investment treaties described in this chapter are often echoed in the national investment laws of developing and transition-economy countries. In particular, many recent national investment codes place limitations on the State’s authority to expropriate foreign assets, sometimes granting rights superior to those provided at customary international law. International investment treaties also guarantee proper application of domestic law by government authorities, national treatment, repatriation of profits, compensation for breach and other standards of treatment.

Part III Substantive Rights, 7 Treatment of Investors

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
Integrated Approach ◽  
International Investment ◽  
National Treatment ◽  
Treatment Standards ◽  
Investment Protection ◽  
Fair And Equitable Treatment ◽  
General Rules ◽  
Equitable Treatment ◽  
Full Protection

Chapter 7 examines central treaty provisions on the treatment of investors. It begins with a discussion of the basis and character of treatment obligations, paying attention to the rule of law in international investment protection, the structure of investor treatment provisions within investment treaties, the historical evolution of the treatment standards, and the use of general rules in their interpretation. It then considers how the treatment standards have been developed and applied in contemporary arbitral awards. It conducts a detailed analysis of the principal treaty protections of fair and equitable treatment, full protection and security, national treatment, and most-favoured-nation treatment. It concludes by offering an integrated approach to the determination of contested rights.

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