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.

India’s BITs

2019 ◽  
pp. 142-171
Author(s):  
Prabhash Ranjan
Keyword(s):  
International Law ◽  
Foreign Investment ◽  
Investment Protection ◽  
Fair And Equitable Treatment ◽  
Definition Of ◽  
Equitable Treatment ◽  
Full Protection

This chapter studies in detail the international law on foreign investment that India has accepted to be bound in the embracement phase. In this regard, the chapter studies the following provisions contained in India’s BITs and FTA investment chapters: definition of investment, which is an important jurisdictional provision; fair and equitable treatment; most favoured nation treatment; and full protection and security. The aforesaid provisions are common to all Indian BITs and FTA investment chapters. The chapter shows that many of the treaty provisions are broadly worded. In order to better understand the import of the language of these provisions, they will be situated within the broader jurisprudence of the ISDS. Depending on arbitral discretion, these broad and vaguely worded provisions are capable of interpretation that gives precedence to investment protection over the host state’s sovereign regulatory power, instead of striking a balance between the two.

Das Recht auf gesundheitliche Regulierung im Investitionsschiedsverfahrensrecht

2019 ◽  
Author(s):  
Cornelia Kirchbach
Keyword(s):  
International Law ◽  
Public International Law ◽  
The Public ◽  
Investment Protection ◽  
Treatment Standard ◽  
Investment Arbitration ◽  
Philip Morris ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Health Regulations

Conflicts and tensions frequently arise between public regulatory interests and investment protection, especially in the area of global health law. Which requirements must a host state observe in order to avoid liability before an investment arbitration tribunal for violation of both the prohibition on expropriation and the fair and equitable treatment standard when introducing health regulations? This thesis examines the framework for national regulations under public international law, on the basis of the verdict in the Philip Morris v Uruguay case. In doing so, it examines the areas of worker protection, environmental health, alcohol consumption and food health exemplarily. The analysis concludes that restrictions on national leeway in this respect through regulations in the public interest are less intrusive than often assumed.

FET and Expropriation in the (Invisible) EU Model BIT

2014 ◽  
Vol 15 (3-4) ◽  
pp. 454-483 ◽  
Author(s):  
Ursula Kriebaum
Keyword(s):  
European Union ◽  
Trade Agreement ◽  
The European Union ◽  
Investment Protection ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Definition Of ◽  
Equitable Treatment ◽  
Traditional Approaches ◽  
First Time

Although it was undisputed in the institutions of the European Union (eu) that future eu investment protection treaties should provide for clauses on expropriation and fair and equitable treatment their exact content is under discussion. Before this background, this article first addresses the expropriation standard keeping in mind that the eu Commission announced that it intends to reaffirm the State’s right to regulate in future eu investment treaties. Subsequently, it provides an overview of the traditional approaches to fair and equitable treatment (fet) and focusses on the antagonism between a requirement of legal stability and the need to allow for regulatory space. Furthermore, it analyses the new definition of the fair and equitable treatment standard in the Comprehensive Economic and Trade Agreement (ceta) which for the first time aims at defining the contents of fet.

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.

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.

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.

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