FET

A Distinction Without a Difference? The Interpretation of Fair and Equitable Treatment Under Customary International Law by Investment Tribunals

Broad interpretations of the standard for fair and equitable treatment (FET) by investment tribunals have become a source of increasing controversy. In theory, linking FET to customary international law (CIL), which is formed through the “general and consistent practice of states” that they follow out of a sense of legal obligation (opinio juris), results in a standard of protection that is more deferential to the regulatory authority of governments than the “autonomous” standard. In practice, however, investment tribunals continue to construe even CIL-based FET provisions to impose broad limits on government authority by accepting, without any evidence of state practice or opinio juris, the pronouncements of previous tribunals as definitive evidence of the standard under CIL.

The SADC MODEL BIT Template: Investment for Sustainable Development

The South African Development Community (SADC) Model Bilateral Investment Treaty Template and Commentary was completed in June 2012 by Member States of the Community. Its completion marks the end of an 18 month process of consultations and drafting among government representatives and is intended as a guide for member states in future investment treaty negotiations.

Philip Morris v. Uruguay: Will investor-State arbitration send restrictions on tobacco marketing up in smoke?

For nearly two decades, the tobacco industry has used international investment rules to challenge governmentrestrictions on cigarette marketing.  In 1994, R.J. Reynolds Tobacco Company threatened to bring a claim under […]

The problem of moral hazard and its implications for the protection of ‘legitimate expectations’ under the fair and equitable treatment standard

While the concepts of sovereignty, human rights, the environment and the rule of law are often invoked in public debate about international investment treaties (IITs), there is relatively little discussion of the economic effects of such treaties.[1] One of the most powerful legal protections provided by IITs is the protection of foreign investor’s ‘legitimate expectations’ under fair and equitable treatment (FET) provisions, which are common to most IITs. This article draws on economic theory—specifically, the notion of moral hazard—to elucidate some of the problems with broader interpretations of the doctrine of legitimate expectations.

When international rules interact: International investment law and the law of armed conflict

The last two decades have witnessed an exponential increase in arbitral disputes between investors and states under international investment treaties. UNCTAD reports 357 known registered cases by the end of 2009; of those, 202 cases—or 57 percent—were initiated after 2004.[1] Independent investment tribunals now regularly render binding decisions as to whether states have violated investment protection standards guaranteed under various bilateral and multilateral investment treaties—a phenomenon that has turned international investment law into one of the most dynamic fields of public international law.

A global thirst: How water is driving the new wave of foreign investment in farmland

It is no longer a secret that there is a new wave of foreign investment in farmland, predominantly in Africa. An explosion of media reports and a series of studies by the World Bank, Food and Agricultural Organisation (FAO), International Fund for Agricultural Development (IFAD), United Nations Conference on Trade and Development (UNCTAD) and International Institute for Environment and Development (IIED), have confirmed the scale and consequences of this new influx of foreign investment. The World Bank report, by far the most comprehensive, found that reported deals amounted to 45 million hectares in 2009 alone.