Fair and Equitable Treatment in Arbitral Practice

A law for need or a law for greed?: Restoring the lost law in the international law of foreign investment

“…It is claimed that in the five short years of the 21st century, a series of arbitral awards have fleshed out the content of the fair and equitable standard of treatment. The principle sources for the structuring of this claim are: OECD (2004); Schreuer (2005). The creativity that is shown in the performance of this exercise gives an indication of the construction of the law through the employment again of low order sources of international law so that the rules could be passed off as binding on states.…”

Fair and Equitable Treatment

“…144 I have chosen the latter approach 145 The terms "Procedural propriety" or "due process" can also be used in order to describe this principle, see Schreuer (2005) He argued that the central test was whether the judicial act or omission "infringes any international rule aiming, either wholly or in part, at the legal protection of foreigners." He further argued that if a judgement is "in flagrant disregard of the aliens' rights", an international claim arises.…”

“…Schreuer (2005) p. 357 with further references 7 OECD DAFFE/IME(2003)4/REV3 pp. 3-5 8 "every kind of asset", adding a broad, non-exhaustive list of what this might include 9 Whether the investor or the investment is the object of the fair and equitable treatment standard depend the language of the specific treaty, see e.g.…”

The ASEAN Comprehensive Investment Agreement: Realizing a Regional Community

“…122 The ATHP makes clear that the responsibility not to cause transboundary pollution is a limitation on the State's "sovereign right to exploit [its] own resources pursuant to [its] own environmental and developmental policies". 123 This latter right is rooted in the principle of permanent sovereignty over natural resources ("the PSNR principle") declared in various UN General Assembly resolutions, particularly at the height of the New International Economic Order in the 1970s. 124 In turn, the PSNR principle is linked with the host State's purportedly unfettered right "[t]o regulate and exercise authority over foreign investment within its national jurisdiction in accordance with its laws and regulations and in conformity with its national objectives and priorities."…”