Fair and Equitable Treatment: Today's Contours
Published 18 March 2014
Introduction
In 2007, the Tribunal in PSEG v. Turkey highlighted that the standard of fair and equitable treatment (FET) had become the prominent standard invoked before investment arbitral tribunals. Ever since, the pace of this movement of FET to the centre of the investment dispute agenda has remained steady and has intensified. An empirical study to quantify the percentage volume of FET arguments in the pleadings before the International Centre for the Settlement of Investment Disputes (ICSID) tribunals would certainly point to a role of FET discourse that would not have been anticipated a decade ago.
While these developments may be surprising, at first sight, it is not difficult to understand the reasons for this evolution. Firstly, bilateral investment treaties (BITs) only set forth limited number of (often seven) substantive absolute standards. Secondly, the FET rule is certainly the broadest of all of them, susceptible to cover a much wider range of activities than other rules. Accordingly, investment lawyers representing claimants naturally seek to tailor their cases and their arguments so that they will be subsumed under the FET standard.
Rudolf Dolzer, Fair and Equitable Treatment: Today's Contours, 12 Santa Clara J. Int'l L. 7 (2014). Also available at: http://digitalcommons.law.scu.edu/scujil/vol12/iss1/2 - republished with permission.