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.

Fair and Equitable Treatment in International Investment Agreements

2017 ◽  
Author(s):  
Roland Kläger
Keyword(s):  
International Law ◽  
Due Process ◽  
International Investment ◽  
General Character ◽  
Minimum Standard ◽  
Customary International Law ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
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.

Changes in the Balance of Rights and Obligations: Toward Investor Responsibilization

2017 ◽  
Vol 111 ◽  
pp. 53-55 ◽  
Author(s):  
Laurence Boisson de Chazournes
Keyword(s):  
International Law ◽  
Classical Approach ◽  
African Continent ◽  
Customary International Law ◽  
Investment Protection ◽  
Treatment Standard ◽  
Emerging Trends ◽  
Fair And Equitable Treatment ◽  
Definition Of ◽  
Equitable Treatment

The classical approach to investment protection is that states have obligations and investors have rights. However, there are emerging trends in favor of a rebalancing of rights and obligations of states and investors. In the context of this recalibrated approach, more attention is given to the definition of substantive provisions, such as the fair and equitable treatment standard. There is also a move from investor protection to investor responsibilization. This emerging responsibilization trend can be observed, for example, in recent treaties negotiated on the African continent, and it is also making a foray into customary international law.

scholarly journals Glamis Gold, Ltd. v. The United States and the Fair and Equitable Treatment Standard

2011 ◽  
Vol 56 (4) ◽  
pp. 919-958 ◽  
Author(s):  
Margaret Clare Ryan
Keyword(s):  
United States ◽  
The United States ◽  
Treaty Rights ◽  
Foreign Investors ◽  
Customary International Law ◽  
Investment Treaty ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
State Practice ◽  
Equitable Treatment

This article critiques the arbitral tribunal’s decision in Glamis Gold, Ltd. v. The United States of America on the basis of its interpretation of the fair and equitable treatment standard (FET) owed by state parties to foreign investors under NAFTA article 1105. Part I outlines the post-WWII development of the FET standard in relation to the restrictive, customary international law of minimum standard of treatment (MST). The author traces the expansive treatment of the FET standard by tribunals in both bilateral investment treaty and NAFTA disputes. Despite a binding Free Trade Commission Note of Interpretation limiting the scope of article 1105, NAFTA tribunals had consistently interpreted the FET standard more broadly until the award in Glamis. Part II evaluates the tribunal’s reasoning in Glamis, arguing that it departs from a growing body of jurisprudence on the FET standard under NAFTA without sufficient justification. The author also criticizes the tribunal’s decision to place an unprecedented evidentiary burden on the claimant by requiring proof of both state practice and opinio juris of the FET standard. The conclusion suggests that the decision of the tribunal in Merrill & Ring Forestry L.P. v. Canada may provide a better approach to balancing governments’ legitimate regulatory objectives and foreign investors’ treaty rights.

A Duty to Consult Foreign Investors When Changing the Regulatory Framework? Implications for Non-Communicable Disease Prevention and Beyond

2020 ◽  
Vol 21 (5) ◽  
pp. 698-723
Author(s):  
Caroline Henckels
Keyword(s):  
Policy Development ◽  
Communicable Disease ◽  
International Investment ◽  
Foreign Investors ◽  
Customary International Law ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Laws And Policies ◽  
Equitable Treatment ◽  
Non Communicable Disease

Abstract Several decisions of international investment tribunals can be read as suggesting that the fair and equitable treatment standard may oblige governments to consult foreign investors in the course of developing new laws and policies. This position would significantly expand the concept of fair and equitable treatment, and goes far beyond what most domestic legal systems require of governments. Generally speaking, there may be sound instrumental and normative reasons for engaging in consultation with affected stakeholders in the course of legislative and policy development. However, with the exception of treaty provisions that otherwise so provide, no duty of consultation in the lawmaking process arises from fair and equitable treatment clauses, customary international law or general principles of law. Therefore, industries such as the tobacco industry are unlikely to succeed in a claim of failure to properly engage in consultation in the process of lawmaking.

The Chevron Saga: The Denial of Justice Standard under the Fair and Equitable Treatment and Customary International Law

2019 ◽  
Vol 4 (1) ◽  
pp. 274-285
Author(s):  
Pablo Jaroslavsky ◽  
Florencia Wajnman
Keyword(s):  
International Law ◽  
The United States ◽  
Arbitral Tribunal ◽  
Customary International Law ◽  
Treatment Provision ◽  
Fair And Equitable Treatment ◽  
Judicial Proceedings ◽  
Chevron Corporation ◽  
The Republic ◽  
Equitable Treatment

The Chevron saga is a paramount example of parallel proceedings. It includes several judicial proceedings in Ecuador and the U.S., different settlements, decisions at all levels of the Ecuadorian judicial system, and enforcement proceedings before the courts of several countries. In 2009, Chevron Corporation and Texaco Petroleum initiated arbitration proceedings against the Republic of Ecuador claiming that Ecuador had breached Article ii of the Treaty between the United States of America and Ecuador concerning the Encouragement and Reciprocal Protection of Investment (the BIT) by failing to provide them fair and equitable treatment. Further, they also claimed that Ecuador committed a denial of justice. In its recent decision, the arbitral tribunal analysed the denial of justice standard under the fair and equitable treatment provision of the treaty and customary international law and concluded that Ecuador had in fact committed a denial of justice. The purpose of this case-note is to analyse the Tribunal’s findings on the denial of justice standard.

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).

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