The Devil Is in the Details: Using Historical Methodology to Investigate ‘Fair and’ ‘Equitable Treatment’ Clauses in Post-War United States’ Commercial Treaties.

Abstract

Having participated in the International Investment Law and History – 2015 Frankfurt Investment Law Workshop at Goethe‐Universität Frankfurt am Main, this book chapter will reflect upon three key challenges that arose during my historical research on the development and drafting of ‘fair and’ ‘equitable treatment’ (FET/ET) from the negotiations of United States’ investment-focused, post-war commercial treaties over a ten year period, from 1946 to 1956.

This chapter proceeds, as follows: part one examines the challenge of sticking to a specific time frame when conducting legal historical research; part two examines the challenge of whether international legal history should exclusively focus on law (or a particular law-maker), or include contributions that examine the social and economic context of law; and part three examines the issue of anachronism in legal historical methodology. My goal for this chapter is to highlight the development of FET/ET and to explain how a lawyer may conduct historical work.

Keywords: Investment law, history, methodology, fair and equitable treatment, FET, non-violation, nullification and impairment.