Ioana Tudor
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199235063
- eISBN:
- 9780191715785
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199235063.003.0003
- Subject:
- Law, Public International Law
This chapter enquires whether the FET standard has acquired a customary character, and whether it is a general principle of law. On the first point, it argues that the FET standard is not part of the ...
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This chapter enquires whether the FET standard has acquired a customary character, and whether it is a general principle of law. On the first point, it argues that the FET standard is not part of the International Minimum Standard, but that it is an independent standard that has become customary, performing the two elements of theory, namely State practice and opinion juris. On the second point, the conclusion as to the FET being a general principle of law is more cautious. States that have only recently been active in the field of foreign investment have not all incorporated FET in their domestic systems, though FET content is already incorporated in the majority of domestic legislative systems. The chapter concludes that with time, FET will certainly confirm its character of a general principle of law.Less
This chapter enquires whether the FET standard has acquired a customary character, and whether it is a general principle of law. On the first point, it argues that the FET standard is not part of the International Minimum Standard, but that it is an independent standard that has become customary, performing the two elements of theory, namely State practice and opinion juris. On the second point, the conclusion as to the FET being a general principle of law is more cautious. States that have only recently been active in the field of foreign investment have not all incorporated FET in their domestic systems, though FET content is already incorporated in the majority of domestic legislative systems. The chapter concludes that with time, FET will certainly confirm its character of a general principle of law.
Martins Paparinskis
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199694501
- eISBN:
- 9780191741272
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694501.001.0001
- Subject:
- Law, Public International Law
Investment protection treaties generally provide for the obligation to treat investments fairly and equitably, even if the wording of the rule and its relationship with the customary international ...
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Investment protection treaties generally provide for the obligation to treat investments fairly and equitably, even if the wording of the rule and its relationship with the customary international standard may differ. The open-textured nature of the rule, the ambiguous relationship between the vague treaty and equally vague customary rules, and States' interpretations of the content and relationship of both rules (not to mention the frequency of successful invocation by investors) make this issue one of the most controversial aspects of investment protection law. This monograph engages in a comprehensive analysis of the relationship between the international minimum standard and fair and equitable treatment. It provides an original argument about the historical development of the international standard, a normative rationale for reading it into the treaty rules of fair and equitable treatment, and a coherent methodology for establishing the content of this standard. The first part of this book untangles the history of both the international minimum standard and fair and equitable treatment. The second part addresses the normative framework within which the contemporary debate takes place. After an exhaustive review of all relevant sources, it is argued that the most persuasive reading of fair and equitable treatment is that it always makes a reference to customary law. The third part of the book builds on the historical analysis and the normative framework, explaining the content of the contemporary standard by careful comparative human rights analysis.Less
Investment protection treaties generally provide for the obligation to treat investments fairly and equitably, even if the wording of the rule and its relationship with the customary international standard may differ. The open-textured nature of the rule, the ambiguous relationship between the vague treaty and equally vague customary rules, and States' interpretations of the content and relationship of both rules (not to mention the frequency of successful invocation by investors) make this issue one of the most controversial aspects of investment protection law. This monograph engages in a comprehensive analysis of the relationship between the international minimum standard and fair and equitable treatment. It provides an original argument about the historical development of the international standard, a normative rationale for reading it into the treaty rules of fair and equitable treatment, and a coherent methodology for establishing the content of this standard. The first part of this book untangles the history of both the international minimum standard and fair and equitable treatment. The second part addresses the normative framework within which the contemporary debate takes place. After an exhaustive review of all relevant sources, it is argued that the most persuasive reading of fair and equitable treatment is that it always makes a reference to customary law. The third part of the book builds on the historical analysis and the normative framework, explaining the content of the contemporary standard by careful comparative human rights analysis.
Martins Paparinskis
- Published in print:
- 2013
- Published Online:
- May 2013
- ISBN:
- 9780199694501
- eISBN:
- 9780191741272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694501.003.0011
- Subject:
- Law, Public International Law
This chapter explains the importance of the issues addressed in the book and outlines the structure of the argument. The relationship between international minimum standard and fair and equitable ...
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This chapter explains the importance of the issues addressed in the book and outlines the structure of the argument. The relationship between international minimum standard and fair and equitable treatment is of considerable theoretical and practical importance for contemporary international law in general and investment protection law in particular. The book will address the issue in three steps, exploring the historical law-making process in Part I, setting out the sources framework in Part II, and identifying the content of the modern international standard in Part III.Less
This chapter explains the importance of the issues addressed in the book and outlines the structure of the argument. The relationship between international minimum standard and fair and equitable treatment is of considerable theoretical and practical importance for contemporary international law in general and investment protection law in particular. The book will address the issue in three steps, exploring the historical law-making process in Part I, setting out the sources framework in Part II, and identifying the content of the modern international standard in Part III.
Aniruddha Rajput
- Published in print:
- 2020
- Published Online:
- February 2021
- ISBN:
- 9780198869900
- eISBN:
- 9780191912771
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198869900.003.0016
- Subject:
- Law, Company and Commercial Law, Public International Law
This chapter analyses the prominent role of due diligence in international investment law. It points out that due diligence was relevant in this field as an element of customary law norms requiring ...
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This chapter analyses the prominent role of due diligence in international investment law. It points out that due diligence was relevant in this field as an element of customary law norms requiring compliance with an international minimum standard for the treatment of aliens and prohibiting denial of justice, before modern day investment treaties were concluded. The chapter’s analysis reveals that due diligence underlies host states’ obligation to provide full protection and security and fair and equitable treatment. It underlines that also investors carry a responsibility of due diligence throughout the whole period of their investment and that an investor’s negligence can lead to loss of protection under investment treaties. The chapter argues that due diligence has emerged as a balancing paradigm between protection of foreign investors and regulatory freedom of host states.Less
This chapter analyses the prominent role of due diligence in international investment law. It points out that due diligence was relevant in this field as an element of customary law norms requiring compliance with an international minimum standard for the treatment of aliens and prohibiting denial of justice, before modern day investment treaties were concluded. The chapter’s analysis reveals that due diligence underlies host states’ obligation to provide full protection and security and fair and equitable treatment. It underlines that also investors carry a responsibility of due diligence throughout the whole period of their investment and that an investor’s negligence can lead to loss of protection under investment treaties. The chapter argues that due diligence has emerged as a balancing paradigm between protection of foreign investors and regulatory freedom of host states.
John G Sprankling
- Published in print:
- 2014
- Published Online:
- June 2014
- ISBN:
- 9780199654543
- eISBN:
- 9780191747946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199654543.003.0001
- Subject:
- Law, Public International Law, Private International Law
The vision of a uniform body of property law applicable in all states may be traced back to natural law theory, which challenged the Westphalian axiom that property rights were intertwined with ...
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The vision of a uniform body of property law applicable in all states may be traced back to natural law theory, which challenged the Westphalian axiom that property rights were intertwined with sovereignty, and thus could arise only under the municipal law of a particular state. Despite the revival of this vision as part of the modern human rights movement, the right to property was omitted from the two principal post-war human rights treaties. The protection of property at the global level was further threatened by challenges to the pre-war consensus that alien property was entitled to an international minimum standard of protection from expropriation and other interference by the host state. In the past 40 years, however, the field of international property law has expanded at an accelerating pace, spurred by influences such as the Cold War’s end, regional human rights treaties, globalization, and exploitation of the global commons.Less
The vision of a uniform body of property law applicable in all states may be traced back to natural law theory, which challenged the Westphalian axiom that property rights were intertwined with sovereignty, and thus could arise only under the municipal law of a particular state. Despite the revival of this vision as part of the modern human rights movement, the right to property was omitted from the two principal post-war human rights treaties. The protection of property at the global level was further threatened by challenges to the pre-war consensus that alien property was entitled to an international minimum standard of protection from expropriation and other interference by the host state. In the past 40 years, however, the field of international property law has expanded at an accelerating pace, spurred by influences such as the Cold War’s end, regional human rights treaties, globalization, and exploitation of the global commons.
Jarrod Hepburn
- Published in print:
- 2017
- Published Online:
- April 2017
- ISBN:
- 9780198785736
- eISBN:
- 9780191827549
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198785736.003.0002
- Subject:
- Law, Public International Law
This chapter considers whether a state’s compliance with its own law is relevant to a tribunal’s analysis of a claimed breach of the fair and equitable treatment (FET) guarantee. There are strong ...
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This chapter considers whether a state’s compliance with its own law is relevant to a tribunal’s analysis of a claimed breach of the fair and equitable treatment (FET) guarantee. There are strong reasons to expect that such consideration would not form part of a tribunal’s FET analysis. However, tribunals in fact do often examine the domestic legality of the respondent state’s conduct. Certainly, domestic legality has not become an outcome-determinative feature in FET analyses, despite some cases appearing to make it so. Nevertheless, it is clear that consideration of domestic law plays an important contributory role for tribunals attempting to give content to the often nebulous FET standard. The chapter shows that tribunals have been reluctant to justify an examination of domestic legality by reference to the doctrine of legitimate expectations. Instead, the prism of arbitrariness is more promising for tribunals to explain reference to domestic law.Less
This chapter considers whether a state’s compliance with its own law is relevant to a tribunal’s analysis of a claimed breach of the fair and equitable treatment (FET) guarantee. There are strong reasons to expect that such consideration would not form part of a tribunal’s FET analysis. However, tribunals in fact do often examine the domestic legality of the respondent state’s conduct. Certainly, domestic legality has not become an outcome-determinative feature in FET analyses, despite some cases appearing to make it so. Nevertheless, it is clear that consideration of domestic law plays an important contributory role for tribunals attempting to give content to the often nebulous FET standard. The chapter shows that tribunals have been reluctant to justify an examination of domestic legality by reference to the doctrine of legitimate expectations. Instead, the prism of arbitrariness is more promising for tribunals to explain reference to domestic law.
