scholarly journals FAIR AND EQUITABLE TREATMENT STANDARD IN NTERNATIONAL INVESTMENT AGREEMENTS

2018 ◽  
Vol 7 (1) ◽  
pp. 1
Author(s):  
Sefriani .
Keyword(s):  
Due Process ◽  
International Investment ◽  
International Investment Law ◽  
Host State ◽  
Legitimate Expectation ◽  
Treatment Standard ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Investment Agreements

<pre><span lang="EN-US">In the last five years, the number of investors who suit against host state in the international arbitration forum increased significantly. Almost all lawsuits used fair and equitable treatment (FET) standard which has been violated by the host state. Most of international investment agreements including those that were made by Indonesia contain FET standard clauses. However, there are no definitions related to this standard. This condition potentially raises a very wide interpretation of the standard. The problem formulations in this article are how the history of FET is, where its position in international investment law is and what elements of FET standard are. The results show that the FET standard has existed since Havana Charter followed by various FCN, BIT and other international investment agreements. FET standard can be categorized as customary international, legally binding on all countries regardless their national law. Although there is no universal approval regarding the scope of FET standard, the writings which have been published and the arbitral tribunal decision mentions that those elements are legitimate expectation; due process; denial of justice; rule of law; non-discrimination; transparency; consistency, good faith, and reasonableness.</span></pre><pre><span lang="EN-US"> </span></pre>

Equity-Based Decision-Making and the Fair and Equitable Treatment Standard: Lessons From the Argentine Investment Disputes – Part I

2012 ◽  
pp. 210-255
Author(s):  
Srilal M. Perera
Keyword(s):  
Decision Making ◽  
International Law ◽  
International Investment ◽  
International Investment Law ◽  
Treatment Standard ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Equitable Treatment ◽  
Investment Agreements

In Part I of this two-part article the author examines the foundations for equity-based decision-making under international law and their relevance to resolving contemporary investment disputes based on the Fair and Equitable Treatment standard (FET standard). He contends that equity-based decision-making in the past has been rare, and in such instances adjudicators have been extremely restrained because of the propensity for subjective judgments. However, in the modern day application of equitable considerations in a large number of investments disputes before the International Centre for Settlement of Investment Disputes (ICSID) seeking relief based on the FET standard, the decisions have mostly been inconsistent and conflicting, leading often to inexplicable and excessive remedies. In no other line of cases has this trend been more demonstrated than in the investment disputes following the Argentine economic crisis. They point more to the serious anomalies and omissions and interpretive issues in International Investment Agreements (mostly BITs) which require remedial measures if international investment law itself is to advance.

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.

Risk, Responsibility, and Fairness in International Investment Law

2017 ◽  
Author(s):  
Azernoosh Bazrafkan ◽  
Alexia Herwig
Keyword(s):  
International Investment ◽  
International Investment Law ◽  
Political Risks ◽  
Systemic Risks ◽  
International Investment Agreements ◽  
Fair And Equitable Treatment ◽  
Ex Ante ◽  
Investment Law ◽  
Equitable Treatment ◽  
Investment Agreements

International investment agreements (IIAs) accommodate two framings of risk in need of mitigation: political risks and risks of physical externalities. The chapter discloses that there is no consistency in the finer-grained framing of these risks in arbitral awards, and analyses these framings from the perspective of the fair and equitable treatment (FET) standard. It is argued that the requirements of fairness and equity call for a just distribution of systemic risks, which IIAs create. It must be ensured that IIAs yield greater ex ante benefits than risks for each stakeholder. The implication is twofold: governmental regulation necessary to protect human rights can never give rise to a right to damages under FET for frustration of expectations and good faith imperfections in regulations by developing countries must be tolerable insofar as emerging development is the constitutive reason for why foreign investment is likely to yield higher ex ante benefits than risks to investors.

scholarly journals Fair and Equitable Treatment and Investor’s Due Diligence Under International Investment Law

2020 ◽  
Vol 67 (2) ◽  
pp. 233-255
Author(s):  
Yulia Levashova
Keyword(s):  
International Investment ◽  
Due Diligence ◽  
International Investment Law ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Political Background ◽  
Legitimate Expectations ◽  
Investment Law ◽  
The Stability ◽  
Equitable Treatment

Abstract The investor’s due diligence has become a significant factor in determining whether the legitimate expectations of an investor give rise to protection under the FET standard. This is especially relevant when an investor’s claim for the protection of its legitimate expectations is based on the stability of a regulatory framework. The investor’s due diligence in the context of the FET standard goes beyond the risk-based business due diligence performed by a foreign investor for its own benefit. It has implications for a state’s right to regulate in the public interest and a broader notion of business responsibilities. Investors are expected to conduct proper due diligence before investing in a host state by demonstrating their reasonable efforts to collect information about the rules and regulations that are pertinent to the proposed investment. In some cases, due diligence extends to an investor’s duty to assess the possible risks related to the broader economic situation and socio-political background of a host state. Focusing on the recent renewable energy awards, this article analyses and clarifies the role of due diligence in the context of the FET standard, as well as its potential application for asserting responsible business conduct in the broader framework of international investment law.

scholarly journals International investment law and labour rights protection: A standard of fair and equitable treatment and indirect expropriation in the light of changes in host country labour law

2021 ◽  
Vol 59 (1) ◽  
pp. 35-51
Author(s):  
Katarina Maletić
Keyword(s):  
International Investment ◽  
International Investment Law ◽  
Rights Protection ◽  
Labour Rights ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Domestic Labour ◽  
Labour Legislation ◽  
Equitable Treatment ◽  
Labour Regulation

The purpose of this paper is to answer the question whether investors may challenge domestic labour legislation by invoking breach of international investment agreements, in particular violations of fair and equitable treatment standard, as well as illegal expropriation of investments. The answer to this question is especially relevant for developing countries, such as the Republic of Serbia, which seek to harmonize their legal systems with international principles of labour rights protection. Therefore, the paper will explore the interpretations of the fair and equitable treatment standard and indirect expropriation given by arbitration tribunals and accepted among scholars, as well as their application with respect to the labour regulation changes. Particularly analysed is the relevant case law before arbitration tribunals dealing with the question whether host states may violate these standards by amending their domestic labour legislation. Research has shown that domestic labour regulation amendments may rarely be interpreted as indirect expropriation, while the fair and equitable treatment standard may be breached in case of unpredictable labour legislation changes which would significantly violate guarantees given by the state to attract foreign investments but cannot protect investors from the introduction of bona fide labour regulations.

International investment law and arbitration

2014 ◽  
Author(s):  
Laird Ian A ◽  
Sabahi Borzu ◽  
Sourgens Frédéric Gilles ◽  
Birch Nicholas J ◽  
Duggal Kabir
Keyword(s):  
Ad Hoc ◽  
International Investment ◽  
Domestic Court ◽  
International Investment Law ◽  
The Past ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Primary Basis ◽  
Equitable Treatment

This chapter is organized into five sections, focusing on issues addressed by tribunals and courts in 2012 related to Jurisdiction, Merits, Compensation and Non-pecuniary Remedies, Procedure and Annulment, and Enforcement of Awards. Section A discusses the grounds for jurisdictional challenge by respondents. Section B provides a summary review of the merits decisions of the past year, showing that the fair and equitable treatment standard remains a primary basis for the awards of tribunals, with a resurgence of decisions by tribunals accepting that investments were expropriated without compensation. Section C reviews the eight awards in which compensation was granted in 2012. Section D addresses questions of procedure that arose in 2012. Finally, Section E reviews the two International Centre for Settlement of Investment Disputes ad hoc annulment committee decisions of the past year, plus a number of domestic court decisions regarding the enforcement of awards.

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