Fair and Equitable Treatment

Its Interaction with the Minimum Standard and Its Customary Status

AvPatrick Dumberry

Häftad, Engelska, 2018

Del i serien Brill Research Perspectives in International Investment Law and Arbitration

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Beskrivning

The fair and equitable treatment (‘FET’) standard is a type of protection found in BITs which has become in the last decades one of the most controversial provisions examined by arbitral tribunals. This book first examines the interaction between the ‘minimum standard of treatment’ (MST) and the FET standard and the question why States started referring to the former in their BITs. It also addresses the question whether the FET should be considered as an autonomous standard of protection under BITs. This book also examines the controversial proposition that the FET standard should now be considered as a rule of customary international law. I will show that while the practice of States to include FET clauses in their BITs can be considered as general, widespread and representative, it remains that it is not uniform and consistent enough for the standard to have crystallised into a customary rule. States also lack the necessary opinio juris when including the clause in their BITs.

Produktinformation

Utgivningsdatum:2018-03-01
Mått:155 x 235 x 6 mm
Vikt:151 g
Format:Häftad
Språk:Engelska
Serie:Brill Research Perspectives in International Investment Law and Arbitration
Antal sidor:82
Förlag:Brill
ISBN:9789004366114

Utforska kategorier

Internationell rätt: transport och handel inom Juridik

Mer om författaren

Patrick Dumberry, Ph.D. (2006), Graduate Institute for International Studies, Geneva, is Professor at the University of Ottawa. He is the author of more than 60 publications, including The Fair and Equitable Treatment Standard under International Law: A Guide to NAFTA Article 1105 Case Law (Wolters Kluwer, 2013).

Innehållsförteckning

Fair and Equitable Treatment: Its Interaction with the Minimum Standard and Its Customary StatusPatrick DumberryAbstractKeywordsGeneral IntroductionI The Interaction between the ‘Minimum Standard of Treatment’ and the FET1.1 The Concept of the MST and Its Customary Status1.2 The Historical Foundation of the MST1.3 The Challenge to Existing Customary Rules, Including the MST, Led by Newly Independent States in the 1960s and 1970s1.4 The New Phenomenon of ‘Treatification’ in the 1990s2.1 Early Appearance of the Standard in Multilateral Instruments and Current Overwhelming Presence in BITs2.2 Why Did States Start Referring to the FET Standard Instead of the MST in Their Investment Treaties?2.3 FET Should be Considered as a Treaty Standard Independent from the MST, Except in Specific Situations3.1 The Broad Interpretation Given to FET Clauses by Arbitral Tribunals and the Importance They Gave to the Terms Used under These Provisions3.2 States’ Reactions to These Awards3.3 CETA: the Ultimate Detailed FET ClauseII Has the FET Standard Become a Rule of Customary International Law?3.1 Introductory Remarks on the Phenomenon of Custom3.2 How Can Provisions Contained in BITs Transform into Customary Rules?3.3 Examination of State Practice3.3.1 The Practice of States Parties to BITs3.3.1 State Practice is General and Widespread3.3.2 State Practice is Representative3.3.3 State Practice is Not Uniform and Consistent3.3.2 The Practice of States Outside the Treaty Framework3.4 Do States Have opinio juris When they Include FET Clauses in their BITs?General ConclusionBibliography