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.

scholarly journals Is the Trans-Pacific Partnership's Investment Chapter the new "Gold Standard"?

2016 ◽  
Vol 47 (4) ◽  
pp. 503 ◽  
Author(s):  
José E Alvarez
Keyword(s):  
United States ◽  
Gold Standard ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
The United States ◽  
Investment Protection ◽  
The North ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

The Trans-Pacific Partnership's Investment Chapter, and particularly its inclusion of investor-state dispute settlement (ISDS), has been the focus of considerable criticism both in the United States and New Zealand. Despite huge differences between these two potential TPP partners, the anticipated economic and political benefits offered by the pact – but also the threats to democracy posed – have been expressed in similar ways by distinct stakeholders in both countries. This essay describes how this chapter is the culmination of reforms to United States investment protection treaties that began with the investment chapter of the North American Free Trade Agreement in 1994 and that are now evident in the latest United States Model Bilateral Investment Treaty (of 2012). The TPP's Investment Chapter borrows heavily from prior United States efforts to narrow investor rights (as with respect to fair and equitable treatment), expand sovereign policy space, and incorporate certain rule of law reforms. For its critics, the pact falls far short of achieving a new "gold standard" precisely because it merely reforms – but does not abandon – ISDS for its enforcement.Editor's note: The text of this article was originally accepted for publication in March 2016. Recent statements by President-elect Donald Trump indicate that the United States will likely withdraw from further participation in the Trans Pacific Partnership and refrain from ratifying the agreed text. Without the United States' ratification, the agreement will not come into force. Despite this apparent ending to the Trans Pacific Partnership, the editors consider that Professor Alvarez's article remains an extremely useful analysis of investment provisions that may well serve as a model for the negotiation of such provisions in other mega-regional trade agreements in the future.

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.

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.

Suspension of the Intermediate-Range Nuclear Forces Treaty prior to its withdrawal: the content of custom

2021 ◽  
Vol 10 (1) ◽  
pp. 143-164
Author(s):  
Kazuki Hagiwara
Keyword(s):  
United States ◽  
International Law ◽  
The United States ◽  
Vienna Convention ◽  
Nuclear Forces ◽  
Customary International Law ◽  
Intermediate Range ◽  
Progressive Development ◽  
State Practice ◽  
The Law

The United States suspended the Intermediate-Range Nuclear Forces Treaty (INF Treaty) ‘in accordance with customary international law’. However, State practice prior to the International Law Commission's codification of the law of treaties did not contribute to clarifying the extent of a right to suspend and the proper conditions for its exercise under customary international law. The few instances regarding suspension due to a serious breach did not demonstrate how the treaties in question were suspended but were a mere reference to a right of suspension in diplomatic or political documents. Against that backdrop, this article seeks to delineate what customary rules the United States believed it was observing and to clarify to what extent those rules are identical to or different from the codified rules on suspension in the Vienna Convention on the Law of Treaties (Convention). Because the codified procedural safeguards or the mechanism of acquiescence under Article 65 of the Convention were considered as the progressive development of international law, it appears possible to suspend the INF Treaty unilaterally outside the Convention and under the customary rules by which the United States is bound. The INF Treaty was suspended by the United States and by Russia in sequence. That Russian suspension appears to have been an exceptio non adimpleti contractus to prevent the asymmetric execution of the INF Treaty that had been previously suspended by the United States.

Finding a Workable Balance Between Investor Protection and the Public Interest in the Trans-Pacific Partnership

2019 ◽  
pp. 551-570
Author(s):  
Chin Leng Lim
Keyword(s):  
United States ◽  
New Deal ◽  
The United States ◽  
Investment Arbitration ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Philosophical Contribution ◽  
Equitable Treatment ◽  
State Rights ◽  
The New Deal

This chapter discusses the apparent isolation of investment rules from mid-20th-century efforts to embed international economic rules within the overall social context of the ‘New Deal’ in the United States and the British welfare state. Whilst embedded liberalism may have found its way subsequently into modern bilateral investment treaties (BITs) through the United States’ ‘friendship, commerce and navigation’ (FCN) treaties forged during the New Deal era, this did not halt the growth of more pro-investor treaties. An eventual global backlash against investment treaties and investment arbitration formed the background against which TPP emerged. TPP’s framers delegated significant aspects of the task of striking an appropriate balance between host state rights and investor rights to investment tribunals. This chapter explains how such delegation works in the application of TPP’s contingent standards of protection, fair and equitable treatment standard and rule against expropriation. It explains TPP’s legal-philosophical contribution to future treaty design, and its relevance to global reform of investment arbitration.

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.

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.

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