Interpretations and coherence of the fair and equitable treatment standard in investment treaty arbitration

The fundamental aims of this thesis is to demonstrate problems regarding key forms of liability formulated under the Fair and Equitable Treatment Standard (‘FET’ hereinafter). These are problems that are likely to occur for developing countries who are attempting to prevent future breaches of the same type illustrated in the current jurisprudence, through developing appropriate responses. Principal Propositions: This thesis will propose the following regarding the FET standard: 1. The FET standard has been used to create rules. 2. The rules created under the FET standard operate on state institutions and state policy creating a framework of administrative liability that is unique as it operates without classic constitution constraints. 3. This form of unique administrative liability of FET confers a governance role on arbitrators, to control state institutions and policy sanctioned by liability, through transplantation of administrative law into the investment treaty framework. 4. This unique administrative liability is applied to developing countries through the investment treaty framework. 5. For reasons of lack of coherence of this unique administrative law and problems faced by developing countries accommodating legal transplants in the law and development movement; developing countries, those most likely to face administrative law claims, may not be able to comply with this unique administrative law. 6. If FET is to create unique rules of administrative liability, investment treaty arbitration must alter its current institutional approach to dispute-resolution under FET in order to, increase legal certainty, be sensitive to both problems faced by the law and development movement regarding legal transplantation and be aware of reasons why national courts may operate with constitutional constraints. Brief Note on Methodology Tudor’s work on the Fair and Equitable Treatment Standard gives a comprehensive account of the origins and content of the standard.1 The aim here was not to repeat on what was done there but to initial key questions of acceptability regarding the content. Hence although a ten year period of jurisprudence is surveyed, between 1999- 2009, the aim here as been to predominantly highlight not only inconsistencies to deal with the important issue of coherence, but also to demonstrate the impact such interpretations may have on investment treaty arbitration as a system of rule-making, along-side issues of compliance of the content by developing states. To this end some focus is given to the following questions, which are considered questions of fundamental importance to the viability of the approach of rule-making under FET in the analysed period: What does this system of rule-making seek to do, and can it achieve those ends? If not, how can it be improved in such a role, if feasible, or is it realistic to detach such a role from it? Hence the method here is to survey the cases and illustrate what rules the FET standard is creating. Then it is to highlight whether these rules can be identified by those who may rely on them, investors, and those who face a burden under them, states. Critically, this approach does no t weigh approaches in the jurisprudence according to chronological patterns. This is fundamentally because this system was not designed to be a rule-making institution. Thus at present all decisions are of equal validity through both the existing method of identifying sources of international law and a procedural omission of a system of precedent governing what decisions take precedence over others. It is felt that to do this would be not only to create a criteria that does not exist as a matter of law, and to do so would be, as a matter of international law, wrong. It would also undermines the flexibility of afforded to the system of using a vast jurisprudence of international decisions, including previous investment treaty disputes, at its disposal in order to formulate arguments and judgments for both parties and adjudicators, respectively. My approach as outlined above, is thus to bring to the surface key positions in FET jurisprudence that illustrate the scope or rights available under three elements of it: (i) Legitimate Expectations; (ii) Transparency and (iii) Denial of Justice. Under first two, as it shall be seen, claims are posited predominantly with respect to acts of organs of the state. Under the third claims exist with respect to institutions and processes that may exist to deal with the investor’s complaints. These elements are chosen as they form the bulk of the current issues dealt with under FET, and due to a limitation of space available here to address the above key questions. The above three elements shall form an empirical basis in order to formulate a discursive and critical narrative that seeks to address the key questions. The steps in this process are outlined briefly below: Stages of the Argument: 1 I. Tudor, The Fair and Equitable Treatment Standard in the International Investment Law (OUP) (2007).The argument proceeds in the following stages: Chapter 1 explores the distinction between adjudication and norm-making, arguing that FET is used to make rules by arbitrators. Chapters 2 to 4 look at the following rules applied by the FET standard: legitimate expectations, transparency, and denial of justice. Chapter 5 and 6 discuss the implications of legitimate expectations and transparency on both investment treaty arbitration and developing countries, and any difficulties that may be encountered in practice. Chapter 7 proposes changes that may assist in dealing with these difficulties