The Vague Meaning of Fair and Equitable Treatment Principle in Investment Arbitration and New Generation Clarifications

Jemielniak, Joanna and Kjær, Anne Lise (eds.) Legal Interpretation in the Practice of International Courts and Tribunals. Oxford University Press (Forthcoming)

iCourts Working Paper Series No. 55, (2016)

25 Pages Posted: 4 May 2016 Last revised: 23 Sep 2016

See all articles by Gunes Unuvar

Gunes Unuvar

University of Copenhagen - Faculty of Law

Date Written: May 3, 2016

Abstract

This paper focuses on the evolution and conceptual development of the Fair and Equitable Treatment (FET) principle, a standard commonly found in international investment agreements (IIAs) and frequently invoked in arbitral disputes between foreign investors and host states. It aims at explaining how the latest free trade agreements such as CETA, TTIP and TPP contribute to the transformation of a contingent and vague notion into a normative legal rule. To do so, the paper gives a historical account of how fair treatment of foreigners evolved over time, and how investment arbitration has constructed its slowly emerging substantive framework. It chiefly argues that explicit clarifications on the constituent elements of the FET principle, as has been the case in CETA, would work in favour of coherent interpretation and a better understanding of what this principle should aim at capturing.

Keywords: legal interpretation, vagueness, fair and equitable treatment, investment arbitration, investment law

Suggested Citation

Unuvar, Gunes, The Vague Meaning of Fair and Equitable Treatment Principle in Investment Arbitration and New Generation Clarifications (May 3, 2016). Jemielniak, Joanna and Kjær, Anne Lise (eds.) Legal Interpretation in the Practice of International Courts and Tribunals. Oxford University Press (Forthcoming); iCourts Working Paper Series No. 55, (2016). Available at SSRN: https://ssrn.com/abstract=2774078 or http://dx.doi.org/10.2139/ssrn.2774078

Gunes Unuvar (Contact Author)

University of Copenhagen - Faculty of Law ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

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