The Fair and Equitable Treatment Standard in International Foreign Investment Law

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ISBN: 9780199235063 | 0199235066
Cover: Hardcover
Copyright: 5/11/2008

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The aim of this series is to publish important and original pieces of research on all aspects of international law. Topics that are given particular prominence are those which, while of interest to the academic lawyer, also have important bearing on issues which touch the actual conduct of international relations. Nonetheless, the series is wide in scope and includes monographs on the history and philosophical foundations of international law. Book jacket.

Table of Arbitral Awards and Judicial Decisions	p. xxiii
List of Conventions and Treaties	p. xxix
List of Abbreviations	p. xxxi
Introduction	p. 1
Sources of the FET Standard
Introductory Note: Identification of the Sources of International Law	p. 9
The FET in International Investment Agreements: A Typology of Drafting Formulations	p. 15
Introduction	p. 15
The FET Standard in Selected Bilateral Investment Treaties	p. 19
Preamble	p. 20
Body of the Treaty	p. 22
Recent Developments in the Drafting of Bilateral FET Clauses	p. 33
The FET Standard in Regional Agreements	p. 36
Preamble	p. 39
Body of the Text	p. 40
Analysis of the Findings	p. 44
The FET Standard in Multilateral Instruments	p. 45
Preamble	p. 47
Body of the Text	p. 47
Analysis of the Findings	p. 50
Resume	p. 51
The FET Standard, Part of the Body of General International Law	p. 53
Introduction	p. 53
Customary Framework of FET	p. 54
The Traditional View	p. 54
The International Minimum Standard	p. 60
The Incompatibility Between the International Minimum Standard and the FET	p. 65
The Two Elements Theory	p. 68
The Two Elements Theory Applied to the FET	p. 74
The FET as Customary Norm	p. 83
The FET Standard-A General Principle of Law?	p. 85
Use of General Principles Preceding the ICSID Convention	p. 86
Article 42(1) of the ICSID Convention	p. 90
Use of General Principles by ICSID Arbitral Tribunals	p. 91
Definition and Method of Identification of the GPL	p. 93
The FET as GPL	p. 101
The Content of the FET Standard
Introductory Note	p. 107
The Concept of Standard and its Application to the FET	p. 109
Introduction	p. 109
The Standard in the Legal Field	p. 111
Etymology	p. 111
History	p. 112
Definitions Given by Scholars	p. 114
Objective and Subjective Elements	p. 116
The Objective Element: A Legal Concept and its Normative Content	p. 117
The Subjective Element: The Application of the Standard	p. 118
Comparison with the Rule	p. 119
The Role of the Judge Confronted with a Standard	p. 121
The FET: A Standard	p. 123
Objective Element of the FET	p. 123
Subjective Element	p. 129
Resume	p. 132
Preparation Phases For A Successful FET Based Claim	p. 134
Introduction	p. 134
Pre-Conditions for Admitting a Claim Based on the FET Standard	p. 135
An Action Attributable to the State	p. 135
Damage suffered by the Investor	p. 137
Causality Between State Action and Damage	p. 137
Burden of Proof	p. 138
The Parties' Approach to, and Interpretation of, the FET Standard	p. 139
The FET Standard in the Investors' Claims	p. 140
The FET Standard in the State's Defence	p. 142
Methodology for Arbitrators	p. 144
Ordinary Meaning	p. 145
FET in the General Context of the BIT	p. 146
Study of the Facts	p. 148
Threshold	p. 149
Resume	p. 152
Actual Situations in which the FET Standard has been Applied	p. 154
Introduction	p. 154
Lack of Respect for the Obligation of Vigilance and Protection	p. 156
Denial of Due Process and/or Procedural Fairness	p. 157
Non-Observance of the Investor's Legitimate Expectations	p. 163
Coercion and Harassment by the Organs of the Host State	p. 169
Failure to Offer a Stable and Predictable Legal Framework	p. 169
Unjustified Enrichment	p. 172
Evidence of Bad Faith	p. 173
Absence of Transparency	p. 175
Arbitrary and Discriminatory Treatment	p. 177
Resume-Achieving Stability in the Investor-State Relationship	p. 180
Relation Between the FET and the Other Treaty Provisions	p. 182
Introduction	p. 182
Other Standards of Treatment	p. 183
Full Protection and Security	p. 183
Non-Discrimination	p. 186
Most Favoured Nation Clause	p. 189
Other Provisions	p. 193
Pacta Sunt Servanda Clause	p. 193
Standard of Non-Impairment	p. 200
Resume	p. 201
Balancing the Breach of the FET Standard
Introductory Note	p. 205
Balancing States' and Investors' Conduct: Calculation of Compensation	p. 207
Introduction	p. 207
Relevance of the Investors' Behaviour, and of the States' Specific Situation at the Compensation Stage	p. 209
Mainstream Position: Relevance at the Liability Stage	p. 209
Proposed Alternative: Relevance at the Compensation Stage	p. 211
Types of Investors' Behaviour and States' Specific Situation to be Considered at the Compensation Stage	p. 217
Conduct of the Investors	p. 217
States' Exceptional Circumstances	p. 223
Resume-Striking a Balance Between Reparation and Compensation	p. 227
Coda-Enforcement of FET Standard	p. 229
Conclusion	p. 233
Appendices	p. 239
Bibliography	p. 293
Index	p. 311
Table of Contents provided by Ingram. All Rights Reserved.

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The Fair and Equitable Treatment Standard in International Foreign Investment Law

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The Fair and Equitable Treatment Standard in International Foreign Investment Law

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