Published 26 January 2022
The Investment Treaty Arbitration System (ITAS) is currently under strong criticism. One of the main concerns is the lack of consistency of the arbitral awards’ interpretation of the investment treaty substantive protections to solve disputes between the States and Investors. Therefore, the ITAS is under a thorough process of evaluation and evolution.
In order to understand the roots and extension of the lack of consistency’s concern, it is necessary to understand the process of evolution of the ITAS in relation to the design and interpretation of the investment treaty substantive protections. Moreover and considering that it is not possible to cover every single substantive protection of the ITAS, this Paper will be focused only on the analysis of the evolution in the design and interpretation of the Fair and Equitable Treatment (FET) substantive protection (one of the most disputed provisions in the arbitral arena).
In order to undertake the said analysis, this Paper has as a starting point a doctrinal-historical analysis of the evolution of the Lex Mercatoria as a framework established by the merchant communities to regulate their business interactions. Within this process of evolution, it is identified some key conditions and context in order for such a concept to emerge.
This paper will be part of the TDM Special Issue on "Salient Issues in International Arbitration - Does a Transnational Legal Order Exist in International Arbitration?" with material from the Bi-Annual Conference organized by the Center on International Commercial Arbitration at the American University Washington College of Law in Washington, D.C. (November 2021)