Diversity in the Formulation of Fair and Equitable Treatment in International Investment Agreements

Abstract

The primary purpose of this paper is to know which formulation of FET standard among the diverse drafting approaches best serves the interests of both States and investors. In this respect, the paper first will have a review of general categorization of FET in a number of IIAs. Subsequently, it will focus on the two most controversial formulations of FET: (1) as a standalone clause and (2) with reference to the minimum standard of treatment under customary international law. In light of this, it will discuss the impact of the various FET drafts on the decisions of arbitral tribunals dealing with this standard. Lastly, the paper will also explore the most recent approaches to the formulation of FET to see if they are capable of brining clarity in the overall discussion of FET’s formulation as well as interpretation. In short, these recent constructions of FET clauses may best serve these interests as they bring clarity.