Fair and Equitable Treatment Between the International and National Rule of Law

Abstract

Promoting the rule of law is a potentially strong legitimating narrative for international investment law. Illustrating the interlinkage, the ubiquitous ‘fair and equitable treatment’ (FET) standard embodies distinctly rule of law requirements. But these requirements remain open-textured and allow understanding their meaning in either more ‘international’ or ‘national’ way. An ‘international’ understanding – detached from the host State’s vision on how the rule of law should look like – should remain dominant. But I argue that decision-making under the FET standard should also involve a systematic engagement with how these requirements would be understood in the host State’s law and how they were complied with from that perspective. Whilst not determinative for establishing a breach, this assessment better respects the expectations of the parties, strengthens the persuasiveness of findings and helps enhance the national rule of law as a key contributor to the ultimate goal of investment protection – economic development.

Leeway to Operate With Plant Genetic Resources

“…4 These treaties have the explicit objective to ensure "fair and equitable sharing of benefits" from genetic resources. In spite of the prominence of the clause "fair and equitable, " for instance, in the full title of the Nagoya Protocol, and notwithstanding the long tradition that this clause has in investment treaties (Dolzer, 2005), its meaning remains undefined and vague (De Jonge, 2011;Vermeylen and Walker, 2011;Morgera, 2015). It is evident, however, that in one way or another fair and equitable benefit-sharing aims at introducing justice into the regulation and use of genetic resources.…”

Challenges of Justice in the Context of Plant Genetic Resources

“…These treaties have the explicit objective to ensure “fair and equitable sharing of benefits” from genetic resources. In spite of the prominence of the clause “fair and equitable,” for instance, in the full title of the Nagoya Protocol, and notwithstanding the long tradition that this clause has in investment treaties (Dolzer, 2005), its meaning remains undefined and vague (De Jonge, 2011; Vermeylen and Walker, 2011; Morgera, 2015). It is evident, however, that in one way or another fair and equitable benefit-sharing aims at introducing justice into the regulation and use of genetic resources.…”