Wednesday, May 1, 2019

Critically analyse the concept of fair and equitable treatment in Essay

Critic each(prenominal)y analyse the concept of attractive and straightforward discussion in enthr nonpareilment treaties, taking into account recent investment - Essay shellA nice starting point for a good discussion is that the term or verbiage fair and genuine interference is the minimum standard and is included in most international investment agreements (IIAs). There are slight variations to this reasoned standard, such as the phrase equitable and reasonable treatment but both of the phrases are almost always made in reference to international laws. Admittedly, yet this short phrase is subject to different interpretations depending on the circumstances and ones 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 look for further how this relatively simple legal phrase is used today to implement investment treaties. What is quite a troubling t o see is the prevalent use of the concept of special laws to interpret treaties in favour of one party completely the investors.3 Discussion Fair and equitable treatment 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 Fair and equitable treatment, narrowly speaking, refers to investments.5 It is commonly used in international treaty law and protects investors logical and reasonable expectations6 it overly 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 answer loans to be defaulted upon or that corruption might force them to engage in more frequent graft as seen across the developing world. The main consideration is the safety of investments by making sure agreements raise the contracting parties increased security and protection.7 Investors prefer safety before any profits are considered. The investors 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 fair and equitable treatment rulings, it could give a false impression that treaties were fairly implemented and negotiated when they are in detail deeply divisive, controversial,

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