Fairness in International Economic Law and Relations

Abstract

The idea of fairness is a recurrent one in international economic law and relations. By and large, however, commentators have failed to provide a structured understanding for this vital concept or explain its reflection in legal rules. This article proposes a theory of fairness as part of a broader theory of justice, suggesting that fairness is a part, but not the whole, of justice. Rather, justice may be thought of as a combination of equality plus fairness (i.e. justice = equality fairness), with the proviso that in any complex system of legal rules, equality must be greater than, or conceptually prior to, fairness (i.e. equality > fairness). Equality and fairness together constitute a 'nested opposition' that legal rules constantly oscillate between. In the latter half of this article a look is taken at how these conceptual relationships are expressed in two regimes of international economic law: trade and investment.