9 General Treatment Standards

General Treatment ◽

National Treatment ◽

Treatment Standards ◽

Strong Similarity ◽

Investment Treaties ◽

Equitable Treatment ◽

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.

9 General Treatment Standards

10.1093/law/9780198703976.003.0009 ◽

2015 ◽

Author(s):

Salacuse Jeswald W

Keyword(s):

National Treatment ◽

Host Countries ◽

Treatment Standards ◽

Degree Of Protection ◽

Investment Treaty ◽

Investment Treaties ◽

Equitable Treatment ◽

In order to protect foreign investments against the political risk created b by placing assets under a host country’s jurisdiction, investment treaties stipulate obligations regarding the ‘treatment’ that host countries must give to investors and their investments. This chapter discusses the absolute and relative general forms of treatment most frequently accorded to investors and investments by international investment treaties. These include fair and equitable treatment, national treatment, most-favoured-nation treatment, full protection and security, and minimum treatment according to the standards of international law. However, the degree of protection afforded individual investments may vary significantly among treaties. Consequently, persons interpreting investment treaty provisions should give careful attention to the differing ways in which individual treaty texts articulate their protections.

Part III Substantive Rights, 7 Treatment of Investors

10.1093/law/9780199676798.003.0007 ◽

2017 ◽

Author(s):

McLachlan Campbell ◽

Shore Laurence ◽

Weiniger Matthew

Keyword(s):

Integrated Approach ◽

National Treatment ◽

Treatment Standards ◽

Investment Protection ◽

General Rules ◽

Equitable Treatment ◽

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.

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

International Investment, Political Risk, and Dispute Resolution ◽

10.1093/law/9780198808053.003.0007 ◽

2020 ◽

Author(s):

Rubins Noah ◽

Papanastasiou Thomas-Nektarios ◽

Kinsella N Stephan

Keyword(s):

International Law ◽

Transition Economy ◽

Investment Protection ◽

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.

3 Fair And Equitable Treatment

10.1093/law:iic/9780199230259.003.003 ◽

2009 ◽

Cited By ~ 1

Author(s):

Gallagher Norah ◽

Shan Wenhua

Keyword(s):

Bilateral Investment Treaties ◽

National Treatment ◽

Standard Format ◽

Foreign Investors ◽

Host State ◽

Investment Treaties ◽

Equitable Treatment ◽

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.

Arbitrariness, the Fair and Equitable Treatment Standard, and the International Law of Investment

Leiden Journal of International Law ◽

10.1017/s0922156511000598 ◽

2012 ◽

Vol 25 (1) ◽

pp. 77-107 ◽

Cited By ~ 5

Author(s):

JACOB STONE

Keyword(s):

International Law ◽

Bad Faith ◽

Common Features ◽

Treatment Standard ◽

Legitimate Expectations ◽

Investment Treaties ◽

Equitable Treatment

AbstractOne of the most common features of international investment treaties is the obligation of a state to grant ‘fair and equitable treatment’ to investors and investments. Treatment giving rise to allegations of breaches of this obligation has taken many forms, namely bad faith, discrimination, denial of justice, frustration of legitimate expectations, lack of transparency, coercion and harassment, and arbitrariness or arbitrary conduct. This latter form of treatment – arbitrariness – has rarely been the focus of scholarly works and, thus, its scope and meaning are difficult to ascertain. When examined in the context of international investment disputes, however, one may conclude that, while its scope and meaning may vary, arbitrariness is indeed a legitimate basis for claim under the fair and equitable treatment standard. The thresholds for demonstrating arbitrariness, however, are decidedly and consistently high.

Due Diligence in International Investment Law

Due Diligence in the International Legal Order ◽

10.1093/oso/9780198869900.003.0016 ◽

2020 ◽

pp. 273-287

Author(s):

Aniruddha Rajput

Keyword(s):

Customary Law ◽

Due Diligence ◽

International Investment Law ◽

Investment Law ◽

Investment Treaties ◽

Equitable Treatment ◽

This chapter analyses the prominent role of due diligence in international investment law. It points out that due diligence was relevant in this field as an element of customary law norms requiring compliance with an international minimum standard for the treatment of aliens and prohibiting denial of justice, before modern day investment treaties were concluded. The chapter’s analysis reveals that due diligence underlies host states’ obligation to provide full protection and security and fair and equitable treatment. It underlines that also investors carry a responsibility of due diligence throughout the whole period of their investment and that an investor’s negligence can lead to loss of protection under investment treaties. The chapter argues that due diligence has emerged as a balancing paradigm between protection of foreign investors and regulatory freedom of host states.

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

10.1093/law/9780198757641.003.0019 ◽

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 ◽

Equitable Treatment ◽

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.

Fair and Equitable Treatment in International Investment Agreements

International Law ◽

10.1093/obo/9780199796953-0158 ◽

2017 ◽

Author(s):

Roland Kläger

Keyword(s):

International Law ◽

Due Process ◽

General Character ◽

Minimum Standard ◽

Customary International Law ◽

International Investment Agreements ◽

Equitable Treatment ◽

Investment Agreements

Fair and equitable treatment is a central norm in international investment law. This norm is contained in the vast majority of international investment agreements as one of the main standards for the protection of foreign investors. Historically, international investment agreements contained short and general clauses of fair and equitable treatment, which were formulated either as free-standing provisions with a reference to general international law, or to the international minimum standard of customary international law. Especially since the first decade of the 21st century, drafting approaches to fair and equitable treatment became increasingly diverse and generated complex and elaborate clauses seeking to address the different elements of the norm that have developed over time. The drafting approaches reflect the long-standing controversies with regard to fair and equitable treatment and the question of whether this concept is to be constructed in accordance with the international minimum standard or as an independent and self-contained standard possibly exceeding customary international law. Both concepts have remained vague and have created difficulties in the interpretation of fair and equitable treatment, which due to its general character became a prominent cause of action in investor-state arbitration proceedings. The evolution of arbitral jurisprudence stimulated the emergence of different elements of fair and equitable treatment, including the protection of the investor’s legitimate expectations, the protection against discrimination and arbitrary treatments, and the principles of due process, denial of justice, and transparency. The increasing number of cases on the basis of fair and equitable treatment also led to concerns and criticism that a far-reaching concept of the norm would threaten the host states’ sovereignty and their right to regulate, as well as the principle of sustainable development. These concerns and the fact that a growing number of investment disputes were brought against developed countries motivated first the North American Free Trade Agreement member states and subsequently other states and the European Union to adapt their international investment agreements in order to try to concretize the concept of fair and equitable treatment and to limit the discretion of arbitrators. The concept of fair and equitable treatment has also received considerable attention by scholars who propose a variety of different approaches to the interpretation of the norm and the balancing of the conflicting private and public interests at stake.

Investment Protection Standards in the Mexico – European Union Bilateral Investment Treaties: Fair and Equitable Treatment and Full Protection and Security

Commercial Integration between the European Union and Mexico ◽

10.3726/978-3-653-03734-0/14 ◽

2016 ◽

Keyword(s):

European Union ◽

Bilateral Investment Treaties ◽

Investment Protection ◽

Investment Treaties ◽

Equitable Treatment ◽

India’s BITs

India and Bilateral Investment Treaties ◽

10.1093/oso/9780199493746.003.0004 ◽

2019 ◽

pp. 142-171

Author(s):

Prabhash Ranjan

Keyword(s):

International Law ◽

Foreign Investment ◽

Investment Protection ◽

Definition Of ◽

Equitable Treatment ◽

This chapter studies in detail the international law on foreign investment that India has accepted to be bound in the embracement phase. In this regard, the chapter studies the following provisions contained in India’s BITs and FTA investment chapters: definition of investment, which is an important jurisdictional provision; fair and equitable treatment; most favoured nation treatment; and full protection and security. The aforesaid provisions are common to all Indian BITs and FTA investment chapters. The chapter shows that many of the treaty provisions are broadly worded. In order to better understand the import of the language of these provisions, they will be situated within the broader jurisprudence of the ISDS. Depending on arbitral discretion, these broad and vaguely worded provisions are capable of interpretation that gives precedence to investment protection over the host state’s sovereign regulatory power, instead of striking a balance between the two.