Fair and Equitable Treatment Standard in International Investment Law: The Customary Status

Abstract

Fair and equitable treatment (FET) is an important standard in international investment law. However, this standard is not free of controversy among governments, scholars and in arbitral tribunals. The historical challenge of FET is its relation with international minimum standard of treatment under customary international law. In recent times, a new challenge arose asking whether FET itself has entered into the family of customary international law or not. This inquiry is important because if the standard has, in fact, become a part of customary international law, then even where States exclude reference to FET for foreign investors in their treaty arrangements, this level of treatment will come into effect by operation of law to such investors. This paper seeks to find an answer for this question. In this respect, the paper first went through the opinions of different scholars. As observed, a few of them supported such a recognition by basing their ideas mostly on the inclusion of FET in the majority of for instance BITs. While the rest of scholars has opposed such an idea by backing the conventional status of FET or pointing on the lack of uniformity of State practice plus the absence of opinio juris among countries. In the second step, the paper analyzed the arbitral cases dealing with such a question. It found, that except a few cases, the rest have not agreed to such a recognition. Finally, the paper looked for the requirement of State practice and opinio juris to see if FET has become part of customary international law. It found that although State practice is general and representative but it is not uniform and consistent. In addition, there was no opinio juris or legally binding believe to accept the customary status of FET. In short, the majority of scholars, arbitral practice, as well as the practice of state and opinio juris does not confirm that FET has entered into the corpus of customary international law.

Keywords: Fair and Equitable Treatment, Customary International Law, Multilateral Agreements, BITs, Arbitral Practice, State Practice

DOI: 10.7176/JLPG/105-14

Publication date: January 31^st 2021