The Concept of Fair and Equitable Treatment: Toward Host Country Is Not Only Vague but Also Created Uncertainty As to What to Be Expected of Private Foreign Investors (TNC)

2020 ◽  
Author(s):  
Swapneshwar Goutam
Keyword(s):  
Host Country ◽  
Foreign Investors ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

Part IV Law and Applicable Principles, 19 Principles of Investment Protection in International Mining Disputes

2017 ◽  
Author(s):  
Burnett Henry G ◽  
Bret Louis-Alexis
Keyword(s):  
Foreign Investment ◽  
Developing Economies ◽  
Most Favored Nation ◽  
National Treatment ◽  
Foreign Investors ◽  
Investment Protection ◽  
Secure Access ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment ◽  
Full Protection

In an effort to attract foreign investment many countries, especially developing economies, have created favorable investment conditions by setting up domestic and international guarantees for foreign investors. In addition to adopting foreign investment laws, many countries have concluded bilateral and multilateral investment treaties aimed at promoting and protecting foreign investment. These treaties provide a number of guarantees concerning foreign investment, which typically include the protection from expropriation; fair and equitable treatment (FET); full protection and security; the protection against arbitrary or discriminatory measures, national treatment, and most favored nation treatment; and, for some of them the observance of other undertakings entered into by contracting States with investors. This chapter examines each of these guarantees as well as the means to maximize investment protection and secure access to international arbitration.

3 Fair And Equitable Treatment

2009 ◽  
Author(s):  
Gallagher Norah ◽  
Shan Wenhua
Keyword(s):  
Bilateral Investment Treaties ◽  
National Treatment ◽  
Standard Format ◽  
Foreign Investors ◽  
Host State ◽  
Fair And Equitable Treatment ◽  
Investment Treaties ◽  
Equitable Treatment ◽  
Full Protection

Like other bilateral investment treaties (BITs), Chinese BITs establish a set of general standards of treatment accorded to foreign investors by the host state. The most commonly found general standards of treatment include fair and equitable treatment (FET), (full) protection and security (PNS), most favoured nation treatment (MFN), and national treatment (NT). The first two belong to the group of non-contingent standards (or so-called “absolute standard of treatment”), whilst the latter two are forms of contingent standards (or “relative standards of treatment”). Absolute standards do not depend on treatment granted to other investors. In contrast, the relative standards are contingent on treatment given to other categories of investors, nationals of the host state in the case of NT and investors from third states for the MFN. This chapter begins with an examination of the FET standard, focusing on the different approaches of interpretations that have been developed in theory and in arbitration practice. It then analyzes the standard under Chinese BITs and assesses the implications of its standard format and any variations.

scholarly journals Preventing the Regulatory Chill of International Investment Law and Arbitration

2020 ◽  
Vol 9 (1) ◽  
pp. 85
Author(s):  
Atif M. Alenezi
Keyword(s):  
International Investment ◽  
Foreign Investors ◽  
International Investment Law ◽  
Regulatory Changes ◽  
Resolution System ◽  
Fair And Equitable Treatment ◽  
Investment Law ◽  
Foreign Corporations ◽  
Equitable Treatment ◽  
Legitimacy Crisis

International investment law has increasingly come under attack because it does not put host states on par with foreign investors. Foreign investors can evoke broad investment rights and pursue investment arbitration. The threat of substantial arbitral awards can result in host states not enacting policies, regulations, laws or reaching decisions, despite them being needed in order to protect a variety of important public interests. The concern is, therefore, that international investment law, including the investor-state dispute resolution system, causes a regulatory chill. The paper examines how the asymmetric relationship between foreign investors and host states can be remedied, so that trust in international investment law is strengthened and its legitimacy crisis is overcome. One core issue with international investment law is that the customary international minimum standard and its therein subsumed full protection and security, and fair and equitable treatment and compensation principles are inherently vague, thereby contributing to the overprotection of foreign investors. Arbitral cases further highlight how regulatory changes can result in host states incurring liability and thus enable foreign corporations to shift potential costs and risks. International, and national solutions to prevent the regulatory chill of international investment agreements are spelled out.

Use of Investor–state against China’s Enforcement of the Anti-Monopoly Law

2019 ◽  
pp. 489-503
Author(s):  
Sungjin Kang
Keyword(s):  
Law Enforcement ◽  
Due Process ◽  
Competition Law ◽  
Foreign Investors ◽  
Foreign Companies ◽  
Competition Law Enforcement ◽  
Fair And Equitable Treatment ◽  
Trading Partners ◽  
Competition Laws ◽  
Equitable Treatment

Since China introduced the Anti-Monopoly Law (AML) in 2008, China achieved an impressive competition law enforcement field record. However, lawyers and scholars still argue that Chinese competition authorities applied AML disproportionately against foreign companies. Despite the possibility of judicial reviews, many foreign companies still have reservation on the independent of judiciary of China, and they are still reluctant to appeal the decisions before the Chinese courts. In addition, there are some incidents where Chinese competition authorities used the AML to promote its own industrial policy. In this regard, foreign companies are not 100 per cent sure to trust the decisions of the Chinese competition authorities that they apply the AML fairly to safeguard the fair competition between Chinese companies and foreign companies. In this regard, foreign investors are trying to find a system to make sure that they are subject to ‘fair and equitable’ treatment or at least to ‘national treatment’ under the trade agreements between China and its major trading partners. The author is of the view that it is time for the foreign investors in China to consider the ISDS as an option to challenge procedural aspects of the Chinese competition law enforcements. By bringing an AML cases before the ISDS, foreign investors may induce Chinese competition authorities to comply with the due process and fair application of the competition laws, thus safeguarding transparency and predictability of the competition law enforcement of China.

scholarly journals ‘Caveat Investor’? The Relevance of the Conduct of the Investor Under the Fair and Equitable Treatment Standard

2006 ◽  
Vol 55 (3) ◽  
pp. 527-558 ◽  
Author(s):  
Peter Muchlinski
Keyword(s):  
Host Country ◽  
Conceptual Analysis ◽  
Case Law ◽  
Investment Risk ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

AbstractThe role that investor conduct plays in applying the fair and equitable treatment standard is relatively unexplored. On the basis of conceptual analysis, and emerging international judicial and arbitral case law, this article suggests that investor conduct is an important consideration. Investor duties are being accepted in relation to the avoidance of unconscionable conduct, the reasonable assessment of investment risk in the host country, and a duty to operate an investment reasonably. These requirements may be said to lead to a new limit upon the fair and equitable treatment standard encapsulated in the phrase ‘Caveat Investor’.

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 AN OVERVIEW OF FOREIGN INVESTMENT LAWS ENFORCED IN PAKISTAN

2016 ◽  
Vol 55 (2) ◽  
pp. 135-154
Author(s):  
Muhammad Khalid Hayat
Keyword(s):  
Foreign Investment ◽  
Research Paper ◽  
International Investment ◽  
Foreign Investors ◽  
Factors Affecting ◽  
Legal Development ◽  
Fair And Equitable Treatment ◽  
The Subject ◽  
Equitable Treatment ◽  
Economic Zones

This research paper examines the foreign investment laws and procedure of Pakistan and their role in protection of foreign investment in Pakistan. These laws are untapped area of research and one cannot find any specific research tracing the legal development in this highly specialized field. So far Pakistan has 48 BITs enforced with different countries and has also signed ICSID Convention, which is promulgated locally through Arbitration (International Investment Disputes) Act, 2011 incorporating the Convention in the schedule to ease the difficulty of foreign investors to enforce the awards rendered under auspices of ICSID in the territory of Pakistan. Under this research, an attempt has been made to study prevalent foreign investment laws and its trends in Pakistan. Though Pakistan has significantly improved its foreign investment regime by introducing new investor’s friendly laws like, Special Economic Zones Act, 2011 and Investment Policy, 2013 etc., apart from its previous legislation on the subject, yet this regime needs more improvement and updating. Extensive overview of all existing foreign investment laws were carried out in this research. Fair and Equitable Treatment, Expropriation and other factors affecting foreign investment laws are the areas, which need to be taken care of by policy maker in the existing foreign investment laws of Pakistan. With these aims, it is hoped that this research paper would be a humble contribution in the literature on the subject.

scholarly journals Perlindungan Kepentingan Nasional Melalui Klausula Dalam Bilateral Investment Treaty

2019 ◽  
Vol 2 (6) ◽  
pp. 1909
Author(s):  
Adinda Balqis Tegarmas G.
Keyword(s):  
Host Country ◽  
Dependency Theory ◽  
Policy Space ◽  
Most Favored Nation ◽  
National Treatment ◽  
Bilateral Investment Treaty ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

Kepentingan nasional merupakan hal yang abstrak dan dinamis namun dianggap penting dalam pelaksanaan kegiatan penanaman modal. Landasan yang mendasari argumentasi tersebut yaitu parameter dan definisi yang beragam atau tidak menentu. Setiap negara berusaha melindungi dan mempertahankan kepentingan nasional dalam hal penanaman modal asing sehingga dapat memacu pembangunan perekonomian nasional, khususnya pada bilateral investment treaty (BIT). BIT menjadi instrumen perlindungan kepentingan nasional yang menjamin kepastian hukum dan membatasi intrepretasi hakim pada suatu sengketa. Kepentingan nasional dapat ditemukan dalam klasula utama BIT yaitu Most Favored Nation, National Treatment, Fair and Equitable Treatment. Tiga klausula tersebut dinilai belum memberikan perlindungan yang seimbang antara investor asing dan investor dalam negeri, berakibat buruk pada kepentingan nasional host country dan membatasi regulatory space atau policy space suatu negara untuk mengatur sendiri kegiatan penanaman modal. Hal tersebut bersesuaian dengan dependency theory yang memandang penanaman modal asing sebagai suatu ancaman bagi host country. Sejalan dengan hal tersebut, BIT dapat diberhentikan berdasarkan fundamental changes of circumtances secara legal apabila tidak melakukan tindakan breach of treaty dan dapat digantikan dengan model BIT yang baru. Tulisan ini mengkaji bentuk perlindungan kepentingan nasional dalam penanaman modal asing dan pilihan penyesuaian klasula utama BIT sehingga dapat memberikan perlindungan terhadap kepentingan nasional.

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.

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