MODERN CONTENT OF FAIR AND EQITABLE TREATMENT STANDARD IN INTERNATIONAL INVESTMENT LAW

Abstract

The Article is devoted to the approaches to understanding and the content of the standard of fair and equal treatment in modern international investment law through consideration of the practice of arbitration investment tribunals. Through case-law the arbitration practice has developed three approaches to understanding the standard of fair and equal treatment: (1) identifying the standard of fair and equal treatment as the same as the minimum standard of treatment; (2) the presumption of the existence of objective norms of the standard of fair and equal treatment; and (3) the "flexible" or variable nature of the standard of fair and equal treatment, which is identified depending on the specific circumstances of a case. There is no unified thought about the correctness of one approach to understanding the standard in the literature; they are the algorithms for qualifying the violation of the standard of fair and equal treatment in a particular case. At the same time, the current understanding of these approaches recognizes a dynamic evolutionary nature of the standard, which can be characterized by a general trend to expand investment protection by the international arbitration institutions, and the balance between the interests of foreign investors and state sovereignty. The new phenomenon is the extension of the standard of fair and equal treatment to the procedural sphere: a state should offer such judicial and administrative procedures under which the rights and interests of the investor can be adequately considered within a reasonable time. The Author also considers the geenral elements of the standard of fair and equal treatment that are common to all approaches to understanding the standard: (1) procedural fairness; (2) nondiscrimination; (3) openness; (4) lack of denial of justice. Each of these elements has developed in the recent practice of investment tribunals, so in the near future these elements will be the main aspects of litigation and arbitration in relation to the standard of fair and equal treatment.