Fair and equitable treatment in the system of international investment law

Abstract

A Interplay with other standards of investment protection In international investment agreements, fair and equitable treatment is usually part of a whole system of different standards of investment protection. While some of these standards of treatment are often combined with fair and equitable treatment in one clause, others are traditionally stipulated in distinct clauses. In any case, questions arise in relation to how fair and equitable treatment fits into that system and what intersections exist between the different standards. To this end, the interplay between fair and equitable treatment and a selection of other investment treaty provisions will be reviewed. National treatment (a) Meaning of national treatment National treatment standards aim at the creation of equal conditions in the host country market for the foreign investor in relation to domestic competitors. Pursuant to that aim, a national treatment standard imposes on the host country the obligation to accord a foreign investor, once established, with treatment no less favourable than the one granted to its own nationals. National treatment standards are well known and prominent features in international economic law. As such, they have found their way into the WTO framework, where obligations of national treatment are expressed in a series of provisions. In this context, national treatment, together with most-favoured-nation treatment, is considered to be a specification of a broader precept of non-discrimination. However, national treatment standards are driven by the intent to inhibit protectionism against foreign products or services and are therefore intimately connected to governmental regulatory measures.