Fair and Equitable Treatment: Its Interaction with the Minimum Standard and Its Customary Status

Abstract

Abstract The book addresses two questions which have been debated by scholars in the last 20 years regarding the fair and equitable treatment (‘fet’) standard found in bits. It examines the interaction between the ‘minimum standard of treatment’ (mst) and the fet standard. It first analyses the fascinating story of how the concept of the mst emerged in the early 20th Century, its subsequent decline from 1960s until the 1990s and its surprising recent ‘resurrection’ in the year 2000. This evolution has had a direct impact on the emergence and subsequent development of the fet standard and explains why States started referring to that standard instead of the mst in their investment treaties. One question addressed in this book, is whether fet is an autonomous standard of protection to be accorded to foreign investors, or is a mere reference to the mst under customary international law. Given the fact that the fet standard is found in the overwhelming majority of bits, another question which arose is whether or not it should now be considered in and of itself as a rule of customary international law.