{"title":"International adjudication as interactional law-making: the incorporation of fair and equitable treatment elements in investment treaties","authors":"Chen Yu","doi":"10.1093/jiel/jgae022","DOIUrl":null,"url":null,"abstract":"\n This article collects data on fair and equitable treatment (FET) ‘elements’ from ISDS awards and investment treaties, respectively, and examines the extent to which States incorporate ISDS tribunals’ interpretation of FET into their subsequent design of treaty clauses. According to the empirical findings, States do incorporate tribunals’ interpretations in treaty design; nevertheless, the practices of incorporation vary according to the types of elements and the economy classification of treaty parties, and are subject to constraints such as bounded rationality and institutional capacity. The findings also reveal the substantive divergence between treaties and the ISDS jurisprudence in the enumeration of FET elements, which, I caution, may exacerbate legitimacy challenges against ISDS.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":2.6000,"publicationDate":"2024-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Journal of International Economic Law","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.1093/jiel/jgae022","RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 0
Abstract
This article collects data on fair and equitable treatment (FET) ‘elements’ from ISDS awards and investment treaties, respectively, and examines the extent to which States incorporate ISDS tribunals’ interpretation of FET into their subsequent design of treaty clauses. According to the empirical findings, States do incorporate tribunals’ interpretations in treaty design; nevertheless, the practices of incorporation vary according to the types of elements and the economy classification of treaty parties, and are subject to constraints such as bounded rationality and institutional capacity. The findings also reveal the substantive divergence between treaties and the ISDS jurisprudence in the enumeration of FET elements, which, I caution, may exacerbate legitimacy challenges against ISDS.
期刊介绍:
The Journal of International Economic Law is dedicated to encouraging thoughtful and scholarly attention to a very broad range of subjects that concern the relation of law to international economic activity, by providing the major English language medium for publication of high-quality manuscripts relevant to the endeavours of scholars, government officials, legal professionals, and others. The journal"s emphasis is on fundamental, long-term, systemic problems and possible solutions, in the light of empirical observations and experience, as well as theoretical and multi-disciplinary approaches.