The Quest to Define 'Fair and Equitable Treatment' for Investors Under International Law: The Case of the NAFTA Chapter 11 Pope & Talbot Awards
Journal of World Investment, Vol. 3, No. 4, pp. 657-691, 2002
38 Pages Posted: 28 Oct 2008
Date Written: October 23, 2008
This article critically analyses the latest Awards in the NAFTA Chapter 11 Pope & Talbot case. The Final Award in Respect of Damages, issued on 31 May 2002, contains very interesting developments in the proper interpretation to be given to the concept of "fair and equitable treatment" included in the "minimum standard of treatment" clause of NAFTA Article 1105. Is "fair and equitable treatment" a concept which should be applied in addition to the minimum standard of treatment of investors under international law? Is there a threshold limitation whereby governmental conduct complained against by foreign investors must be "egregious" or "outrageous" in order to breach this minimum standard? The Award also tackles the question of the validity and effect of the Nafta Commission's "Interpretation" of Article 1105, issued on 31 June 2001, as well as the interaction of this Interpretation with the "most-favoured-nation" clause contained in NAFTA Article 1103.
Keywords: NAFTA Chapter 11, Investor-State arbitration, Pope & Talbot case, Fair and equitable treatment, minimum standard of treatment, NAFTA Article 1105
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