FAIR AND EQUITABLE TREATMENT STANDARD IN INVESTMENT TREATIES AND GENERAL INTERNATIONAL LAW

Fair and equitable treatment (FET) standard is a common part of contemporary bilateral investment treaties, as well as other international investment agreements. Indeed, in the last two decades the practice of investment treaty arbitration has revealed FET standard as the most important standard for foreign investors' international legal protection. This paper analyzes the relationship of this in principle treaty standard with general international law. Investment treaties generally do not provide a definition of FET standard and they are not uniform with regard its association with general international law. This has placed a lot of burden on investment arbitration tribunals who interpret this standard by taking into account the text and context of particular investment treaty. The paper gives an overview of relevant literature and practice of investment arbitration tribunals in considering two main questions. Firstly, the author considers whether the FET standard as such represents the existing general customary international law in the form of the long time acknowledged minimum standard of treatment of aliens. Secondly, the author considers whether the very large number of contemporary investment treaties, accompanied by the constantly growing arbitration practice with regard to FET standard has some sort of a rebound effect on general customary international law. The main conclusion of the paper is that the mutual influence of relevant customary and treaty law, as well as FET standard's more objective and clearer nature than the minimum standard says a lot about the potency of this standard to confirm its place in general international law.