The Core Standard of International Investment Protection
Fair and Equitable Treatment
By: Alexandra Diehl
About This Book
This book surveys and analyses the nature of FET as a new rule of customary law that is non-contingent and absolute in that it protects a given entity irrespective of the treatment which may be accorded to others. The author explores whether the often-heard criticism of the international investment protection regime is justified. The overarching questions are: Does the systems mixture of private arbitration and public law indeed undermine accountability and independence in judicial decision-making? Does it trump principles of legislative supremacy and, in the end, alter a central tenet of representative democracy? Among the far-reaching aspects of the subject covered are the following: the relationship of FET to human rights and other standards of protection; assumptions about reciprocity and mutuality; the treatification of foreign investment law; the special significance of the Energy Charter Treaty; ICSID as a self-contained system; identifying limitations on the parties freedom of choice; the protection of legitimate expectations; the relevance of investors conduct in FET proceedings; due process in administrative decision-making, and denial of judicial justice. Relevant case law is examined, and there are detailed descriptions of the main dispute resolution forums ICSID arbitration especially, but with due attention to the new UNCITRAL, the ICC Rules, the SCC and the LCIA Rules. This is a significant contribution to the debate over a controversial concept and its normative underpinnings. By analysing how states are bound by investment treaty obligations and how arbitrators deal with them, this book explains how the standards are continually shaped and scrutinized to respond to the needs of the actors engaged in an investment relationship."
AI Overview
"The Core Standard of International Investment Protection: Fair and Equitable Treatment" by Alexandra Diehl is a comprehensive legal treatise that explores the fundamental principles of international investment law, particularly focusing on the standard of fair and equitable treatment (FET). Here is a detailed overview of the book:
Key Themes
Fair and Equitable Treatment (FET):
- The book delves deeply into the concept of FET, which is a cornerstone of international investment protection. It examines the historical development, legal framework, and practical applications of this standard in bilateral investment treaties (BITs) and international arbitration.
Customary International Law:
- Diehl discusses how FET has evolved into a part of customary international law, reflecting widespread and consistent state practice and opinio juris. This evolution is crucial for understanding its application in various investment disputes.
BITs and Arbitration:
- The book analyzes the role of FET in BITs, highlighting how tribunals interpret this provision to ensure even-handed and just treatment conducive to fostering foreign investment. It also examines case law, such as Azurix Corp. v. Argentina, where the tribunal emphasized the importance of clarity and certainty in legal requirements for investors.
Due Process and Denial of Justice:
- Diehl touches on the relationship between due process and the denial of justice, noting that a lack of due process can be associated with a denial of justice. This is an important aspect of ensuring that investors receive fair treatment.
International Arbitration and Legal Requirements:
- The book discusses how all relevant legal requirements for initiating, completing, and operating investments should be readily known to all affected investors. This clarity is essential to avoid doubt or uncertainty, which could undermine investment confidence.
Plot Summary
The book is structured around a detailed examination of FET within the context of international investment law. It begins with an introduction to the historical and legal background of FET, tracing its development from its inception in BITs to its recognition as a part of customary international law.
Diehl then delves into the practical applications of FET in international arbitration, using case studies to illustrate how tribunals interpret and apply this standard. The book also explores the relationship between FET and other substantive standards in international investment law, such as national treatment and most-favored-nation treatment.
Critical Reception
While specific reviews of the book are not provided in the search results, the book has been widely cited and referenced in academic and legal circles. It is considered a seminal work in the field of international investment law, offering a comprehensive and authoritative analysis of FET.
Diehl's work has been praised for its clarity and depth, providing a valuable resource for scholars, practitioners, and policymakers interested in international investment protection. The book's impact can be seen in its influence on subsequent legal developments and its continued relevance in contemporary investment arbitration.
In summary, "The Core Standard of International Investment Protection: Fair and Equitable Treatment" by Alexandra Diehl is a definitive treatise on the critical standard of fair and equitable treatment in international investment law. It offers a thorough examination of the historical, legal, and practical aspects of FET, making it an essential read for anyone engaged in the field of international investment arbitration.