Good Faith in the International Law of Investments: Legitimate Expectations and Prohibition of Abuse of Procedure under ‘Fair and Equitable Treatment’

2017 ◽  
Keyword(s):  
International Law ◽  
Good Faith ◽  
Fair And Equitable Treatment ◽  
Legitimate Expectations ◽  
Equitable Treatment

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

2012 ◽  
Vol 25 (1) ◽  
pp. 77-107 ◽  
Author(s):  
JACOB STONE
Keyword(s):  
International Law ◽  
International Investment ◽  
Bad Faith ◽  
Common Features ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
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.

Legitimate Expectations and Fair-and-Equitable-Treatment under the Energy Charter Treaty

2022 ◽  
Author(s):  
Niclas Landmann
Keyword(s):  
Renewable Energy ◽  
Energy Sector ◽  
Comprehensive Analysis ◽  
Due Diligence ◽  
The Past ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Energy Charter Treaty ◽  
Legitimate Expectations ◽  
Equitable Treatment

A recent tide of ISDS cases in the renewable energy sector has generated a large number of arbitral awards that turn of the notion of legitimate expectations. The Fair and Equitable Treatment Standard (FET) and the notion of legitimate expectations has been highly undetermined in the past. This work contains a comprehensive analysis of the renewable energy awards and the interpretation of the notion of legitimate expectations therein. In particular, it is examined whether arbitral jurisprudence formed a cohesive body of caw-law. The author analyses which aspects with regard to commitment by the states, due diligence of the investors, and level of impact were considered a violation of the FET Standard by recent arbitral tribunals.

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.

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 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.

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