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The Fair and Equitable Treatment Standard in International Foreign Investment Law

The Fair and Equitable Treatment Standard in International Foreign Investment Law

Author: Ioana Tudor
Publisher: Oxford University Press
ISBN: 9780199235063
Published In: March 2008
Format: Hardback , 352 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Gives an overview of more than 400 Bilateral Investment Treaties (BITs)
Contains an up-to-date analysis of the recent case law on international foreign investment
Suggests a standard FET clause as the smallest common denominator of all the varying concepts of fair and equitable treatment

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.

Readership: Practitioners, academics, scholars, and advanced students of public international law, international economic law, international trade, and arbitration

Introduction
I The Sources of the FET Standard
1: The FET Standard in International Investment Agreements: A Typology
2: The FET Standard as Part of the Body of General International Law
II The Content of the FET Standard
3: The Concept of the Standard and its Application to the FET
4: The Preparation Phases for a FET Based Claim
5: Actual Situations in which the FET Standard has been Applied
6: The Relation Between the FET Standard and Other Treaty Provisions
III Balancing the Breach of the FET Standard
7: Balancing States' and Investors' Conduct: Calculation of Compensation
Enforcement of the FET Standard
Conclusion
Bibliography
Annexes
Index

Ioana Tudor, Associate, Gide Loyrette Nouel, Warsaw

"One welcomes the publication of the first monographic study on FET in international investment law by Ioana Tudor" - European Journal of International Law (20)

"The 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" - ASA Bulletin

"Useful for counsel representing investors and states, arbitrators and negotiators of investment treaties...excellent information and references, as well as pertinent commentaries and stimulating ideas" - Crina Bautag, University of London