International Investment Law: A Changing Landscape

A Companion Volume to International Investment Perspectives

image of International Investment Law: A Changing Landscape

This publication presents four studies which represent recent core work of the OECD Investment Committee. The first study, "Transparency and Third Party Participation in Investor-to-State Dispute Settlement ," aims to enhance understanding of the role of transparency and third party participation in investor-state dispute settlement procedures. It examines the current rules, steps taken to improve transparency, and the perceived advantages as well as the challenges of additional transparency.  Two other studies touch upon two of the most frequently contested provisions in investor-state arbitration. "Fair and Equitable Treatment Standard in International Investment Law" clarifies the concept, based on jurisprudence and state practice. "‘Indirect Expropriation’ and the ‘Right to Regulate’ in International Investment Law" identifies the main criteria found in investment agreements and used by tribunals to articulate the difference between the two concepts.  The final paper looks at most favoured nation treatment.

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Fair and Equitable Treatment Standard in International Investment Law

The obligation of the parties to investment agreements to provide to each other’s investments “fair and equitable treatment” has been given various interpretations by governmental officials, arbitrators and scholars. Discussion of this standard has focused mainly on whether the standard of treatment required is measured against the customary international law minimum standard, a broader international law standard including other sources such as investment protection obligations generally found in treaties and general principles or whether the standard is an autonomous self-contained concept in treaties which do not explicitly link it to international law. Because of the differences in its formulation, the proper interpretation of the “fair and equitable treatment” standard depends on the specific wording of the particular treaty, its context, negotiating history or other indications of the parties’ intent. The attempts to clarify the normative content of the standard itself have, until recently, been relatively few. This document provides factual elements of information on jurisprudence, literature and state practice related to the fair and equitable treatment standard. It examines the origins of the standard and its use in international agreements and state practice, its relationship with the minimum standard of international customary law and the elements of its normative content as identified by arbitral tribunals.

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