The Fair and Equitable Treatment Standard in the International Law of Foreign Investment
Series: Oxford Monographs in International Law;
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Product details:
- Publisher OUP Oxford
- Date of Publication 13 March 2008
- ISBN 9780199235063
- Binding Hardback
- No. of pages348 pages
- Size 242x168x25 mm
- Weight 678 g
- Language English 0
Categories
Short description:
This book analyses the conventional and customary framework of the Fair and Equitable Treatment clauses commonly found in bilateral investment treaties (BITs) and charts how these clauses have become norms of customary international law.
MoreLong description:
The treatment of foreign investors and of their investments on the territory of a host State is often subject to a bilateral investment treaty (BIT) signed by the national State of the investors and the host State. These BITs usually contain a clause in which the two States offer fair and equitable treatment (FET) to the foreign investors on their territory. Moreover, this clause has become a norm of customary law, implying that investors may rely on it even outside the context of the BIT. Foreign investors whose rights under this clause have not been respected may bring the State in front of an international tribunal. This book analyses not only the conventional and customary framework se the FET clause but also its scope and all its applications in the existing case law.
This book tackles the standard of fair and equitable treatment by applying four conceptual frames: the legal basis of FET, its nature as a standard, its content and finally the implications of its breach. The first two chapters explore the two classical sources of international law as possible sources for FET. The main sources of FET lie in a rich conventional framework, mainly bilateral and regional. Yet the high number of BITs does not appear to offer a uniform model of FET clauses, quite the opposite; the book offers a classification of the FET clauses found in more than 400 BITs. Having concluded that the conventional framework is essential to FET, the book turns to the examination of the possible customary character of FET and argues that the view equating FET with the International Minimum Standard is erroneous and it limits the scope of FET. Alternatively, it suggests that the FET standard is an independent standard of customary nature. Then the book looks at the nature of FET, that of being a standard and retains three direct consequences for its meaning: its flexibility, the absence of a fixed content and its evolutionary character. With these three characteristics in mind, it proceeds to the third conceptual framework, the content of FET. Although no fixed content may be given to it, it identifies and develops each one of those situations in which the FET standard has already been applied. Finally, the last conceptual framework aims at discussing the final act of a FET claim, i.e. the amount of compensation awarded. It argues that FETis a standard which balances the interests and behaviours of both the States and the investors, at the stage of compensation.
One welcomes the publication of the first monographic study on FET in international investment law by Ioana Tudor
Table of Contents:
Introduction
I The Sources of the FET Standard
The FET Standard in International Investment Agreements: A Typology
The FET Standard as Part of the Body of General International Law
II The Content of the FET Standard
The Concept of the Standard and its Application to the FET
The Preparation Phases for a FET Based Claim
Actual Situations in which the FET Standard has been Applied
The Relation Between the FET Standard and Other Treaty Provisions
III Balancing the Breach of the FET Standard
Balancing States' and Investors' Conduct: Calculation of Compensation
Enforcement of the FET Standard
Conclusion
Bibliography
Annexes
Index
