Critically analyse the concept of fair and equitable treatment in Essay

Critically analyse the concept of fair and equitable treatment in investment treaties, taking into account recent investment - Essay Example A nice starting point for a good discussion is that the term or phrase â€Å"fair and equitable treatment† is the minimum standard and is included in most international investment agreements (IIAs). There are slight variations to this legal standard, such as the phrase â€Å"equitable and reasonable treatment† but both of the phrases are almost always made in reference to international laws. Admittedly, even this short phrase is subject to different interpretations depending on the circumstances and one's viewpoint. What is lacking in most of treaties is the legal concept of erga omnes like in Portugal v Australia to attain the goal of FET.2 It is the main purpose of this paper to explore further how this relatively simple legal phrase is used today to implement investment treaties. What is quite troubling to see is the prevalent use of the concept of special laws to interpret treaties in favour of one party only – the investors.3 Discussion Fair and equitable tr eatment is becoming more important these days. ... The only issue supposedly before any trade arbitral tribunal is to decide whether in all circumstances the conduct at issue is indeed fair and equitable.4 Definition: â€Å"Fair and equitable† treatment, narrowly speaking, refers to investments.5 It is commonly used in international treaty law and â€Å"protects investors' legitimate and reasonable expectations;6 it also protects against an arbitrary or capricious treatment, bad faith, coercion and harassments.† Investors negotiating with countries are very often understandably worried that their investments might be seized as part of nationalisation schemes, or that a change of regimes might cause loans to be defaulted upon or that corruption might force them to engage in more frequent bribery as seen across the developing world. The main consideration is the safety of investments by making sure agreements offer the contracting parties increased security and protection.7 Investors prefer safety before any profits are c onsidered. The investor's legitimate security expectations are the dominant elements of this treaty standard.8 Some experts believe FET guarantees a treatment beyond the minimum standards required under international laws. But this paper will analyse fair and equitable treatment (FET) a little bit broadly. It is fair enough for investors to receive fair and equitable treatment but what about the host governments, citizen stakeholders, NGOs, labour and the poor? This paper will thus look at fair and equitable treatment in that broader fashion. By merely looking at â€Å"fair and equitable treatment† rulings, it could give a false impression that treaties were fairly implemented and negotiated when they are in fact deeply divisive, controversial,