Fair and Equitable Treatment

Patrick Dumberry, Ph.D. (2006), Graduate Institute for International Studies, Geneva, is Professor at the University of Ottawa. He is the author of more than 60 publications, including The Fair and Equitable Treatment Standard under International Law: A Guide to NAFTA Article 1105 Case Law (Wolters Kluwer, 2013).

• Fair and Equitable Treatment: Its Interaction with the Minimum Standard and Its Customary StatusPatrick DumberryAbstractKeywordsGeneral IntroductionI The Interaction between the ‘Minimum Standard of Treatment’ and the FET1.1 The Concept of the MST and Its Customary Status1.2 The Historical Foundation of the MST1.3 The Challenge to Existing Customary Rules, Including the MST, Led by Newly Independent States in the 1960s and 1970s1.4 The New Phenomenon of ‘Treatification’ in the 1990s2.1 Early Appearance of the Standard in Multilateral Instruments and Current Overwhelming Presence in BITs2.2 Why Did States Start Referring to the FET Standard Instead of the MST in Their Investment Treaties?2.3 FET Should be Considered as a Treaty Standard Independent from the MST, Except in Specific Situations3.1 The Broad Interpretation Given to FET Clauses by Arbitral Tribunals and the Importance They Gave to the Terms Used under These Provisions3.2 States’ Reactions to These Awards3.3 CETA: the Ultimate Detailed FET ClauseII Has the FET Standard Become a Rule of Customary International Law?3.1 Introductory Remarks on the Phenomenon of Custom3.2 How Can Provisions Contained in BITs Transform into Customary Rules?3.3 Examination of State Practice3.3.1 The Practice of States Parties to BITs3.3.1 State Practice is General and Widespread3.3.2 State Practice is Representative3.3.3 State Practice is Not Uniform and Consistent3.3.2 The Practice of States Outside the Treaty Framework3.4 Do States Have opinio juris When they Include FET Clauses in their BITs?General ConclusionBibliography