Is CETA the Promised Breakthrough? Interpretation and Evolution of Fair and Equitable Treatment and (Indirect) Expropriation Provisions
iCourts Working Paper Series No. 97
34 Pages Posted: 15 Jun 2017 Last revised: 9 Aug 2017
Date Written: June 14, 2017
This paper examines two of the most common, and arguably the most controversial, foreign investment protection principles included in CETA, namely fair and equitable treatment and (indirect) expropriation. The paper takes into account states’ treaty-making experiences, arbitral practice relating to the interpretation of these principles and the legal-political interplay between the two. Through this analysis, the paper attempts to demonstrate whether or not the CETA provisions, as one of the first ‘new-wave’ free trade agreement drafts, bear the potential of providing further clarity and advancement as to how these principles of foreign investment protection are defined, understood and applied in case law.
Keywords: international investment law, international arbitration, investor-state dispute settlement, free trade agreements, Canada, European Union, CETA
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