Abstract
This chapter inquires into the origins of the obligation to accord fair and equitable treatment to foreign investments and traces it back to a manifestation of ‘normative equity’, i.e. a kind of equity which affects the substantive content of the law going so far as to be subsumed under specific treaty provisions. Moving on from the increasing importance of this obligation in investor-State arbitration, the second part of the chapter provides an outline of the book.
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Notes
- 1.
- 2.
See Falcon y Tella 2008, pp. 70 et seq.
- 3.
In England, originally, the possibility for a court of law to apply both strictum jus and equity was foreclosed. Equity constituted a separate branch of law and a special kind of justice, administered by special courts, i.e. courts having jurisdiction only when the available remedy was incomplete or inadequate. See Story 1846, p. 32: ‘Perhaps the most general, if not the most precise, description of a Court of Equity, in the English and American sense, is, that it has jurisdiction in cases of rights, recognised and protected by the municipal jurisprudence, where a plain, adequate, and complete remedy cannot be had in the Courts of Common Law’. Following the reform of the Judicature Acts of 1873–1875, the system of equity and that of strict law have been unified as well as the judge competent to apply them (the High Court of Justice). The separation between the two systems, however, continues to affect the structure of the English legal order; accordingly, the distinction among legal rights and equitable rights, as well as among their respective holders, is still of relevance. Cf. Sereni 1956.
- 4.
Razi 1963, p. 24, observes as follows: ‘In Anglo-American jurisprudence, Equity, like almost everything else, has been the creation of the courts. In the civil law world the natural habitat of equity has been the Academy. It is in the universities that for more than two thousand years the word has been handled by philosophers and writers who, needless to say, have seldom defined it in identical terms.’
- 5.
One well-defined manifestation of this idea can be found in the case law of the Italian Supreme Court. See, for instance, the judgment of 11 November 1991, No. 12014 (United Sections). Of course, a different hypothesis arises where a specific norm vests the judge with the power to decide ex aequo et bono. That is the case of Articles 113 and 114 of the Italian Code of Civil Procedure. According to these Articles, when passing the decision, the judge is required to apply the rules of law, unless the applicable law gives him the power to decide ex aequo et bono.
- 6.
As far as the Italian Civil Code is concerned, suffice it to think about all those provisions resorting to equity as a criterion of judgment. One example is Article 1226, which states as follows: ‘If the precise amount of the damage to the plaintiff resulting from a breach of the defendant’s obligation cannot be proved, the judge shall fix the amount according to equitable principles’. For further examples of normative equity (or equity in legislation), see Razi 1963, pp. 27 et seq. This same author, also in light of what has been observed thus far, concludes by observing that ‘as in many other confrontations, the civil law and the common-law systems, despite their different outlook, meet. Their organization is different and so are their techniques. But below the surface the two systems are nourished by the same sources and ideals. To think about it, it could not have been otherwise since, after all, both systems are but two aspects of the same civilization’ (p. 44).
- 7.
A conclusion of this kind may be inferred from the resolution adopted in 1937 by the Institute of International Law (Annuaire de l’Institut de Droit International 38:271) and concerning ‘La compétence du juge international en équité’; its Article 1 states that ‘l’équité est normalement inhérente à une saine application du droit, et que le juge international, aussi bien que le juge interne, est, de par sa tâche même, appelé à tenir compte dans la mesure compatible avec le respect du droit’. In this matter, see ex multis Degan 1970; Franck 1995 and Higgins 1994, pp. 219 et seq.
- 8.
Continental Shelf (Tunisia v. Libya), Judgment of 24 February 1982, para 71. Once again, we refer to equity infra legem, on the proviso that both equity praeter legem (i.e. aimed at filling lacunae) and equity contra legem (i.e. a mitigation of the applicable law for extra-legal reasons) are not allowed in the international legal order. This kind of equity is increasingly relied on in commercial arbitration. This on the assumption, rightly identified by Youssef 2012, that ‘[t]he classic regulation of arbitration, rooted in the requirements of consent and writing, is indifferent to economic realities (such as the factual or legal nexus among independent legal entities or among autonomous instruments) and insensitive to considerations of equity which may arise in specific cases. It is based on consent as a per se rule. The classic simple yes-no question, whether a written arbitration agreement exists, is often simplistic and fails to reflect the true complexity of the jurisdictional issues which arise in complex arbitrations’ (p. 106); accordingly, ‘when courts and tribunals exclude the normal application of arbitration law to accommodate economic realities or to take into account considerations that are deemed more just, the ‘equities’ of the case are not mere dicta. They constitute an integral part of the legal reasoning of courts and tribunals’ (p. 109).
- 9.
Of course, a different hypothesis arises where the statute of a certain international tribunal expressly recognizes the judge’s power to decide ex aequo et bono: ‘the [judge] can take such a decision only on condition that Parties agree […], and the [judge] is then free form the strict application of legal rules in order to bring about an appropriate settlement. The task of the [judge] in the present case is quite different: it is bound to apply equitable principles as part of international law, and to balance up the various considerations which it regards as relevant in order to produce an equitable result. While it is clear that no rigid rules exist as to the exact weight to be attached to each element in the case, this is very far from being an exercise of discretion or conciliation; nor it is an operation of distributive justice.’ (Continental Shelf (Tunisia v. Libya), Judgment of 24 February 1982, para 71). One example is Article 38 of the Statute of the International Court of Justice. Paragraph 2 of that Article states that, if the parties agree thereto, the Court may decide a case ex aequo et bono. A similar provision may be found in Article 42, para 3, of the 1965 Washington Convention, setting up the International Centre for the Settlement of Investment Disputes: ‘The provisions of paras (1) and (2) shall not prejudice the power of the tribunal to decide a dispute ex aequo et bono if the parties so agree’. In this last regard, see Schreuer 1996. As to the power to decide ex aequo et bono in international commercial arbitration, see Mistelis 2011, p. 221.
- 10.
One example can be found in the preamble of the 1982 UN Convention on the Law of the Sea: ‘Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which […] will promote […] the equitable and efficient utilization of their resources’.
- 11.
Article 5 of the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses, proves quite revealing. In line with this Article, ‘1. Watercourse States shall in their respective territories utilize an international watercourse in an equitable and reasonable manner. In particular, an international watercourse shall be used and developed by watercourse States with a view to attaining optimal and sustainable utilization thereof and benefits therefrom, taking into account the interests of the watercourse States concerned, consistent with adequate protection of the watercourse. 2. Watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilize the watercourse and the duty to cooperate in the protection and development thereof, as provided in the present Convention.’
- 12.
- 13.
GA Res. No. 3201, XXIX, 1974; GA Res. No. 3202, XXIX, 1974; GA Res. No. 3281, XXIX, 1974.
- 14.
See, for instance, the preamble of the Charter of Economic Rights and Duties of States: ‘The General Assembly, Recalling that the United Nations Conference on Trade and Development [UNCTAD], in its resolution 45 (III) of 18 May 1972, stressed the urgency to establish generally accepted norms to govern international economic relations systematically and recognized that it is not feasible to establish a just order and a stable world as long as a charter to protect the rights of all countries, and in particular the developing States, is not formulated […] Noting that, in its resolution 3082 (XXVIII) of 6 December 1973, it reaffirmed its conviction of the urgent need to establish or improve norms of universal application for the development of international economic relations on a just and equitable basis and urged the Working Group on the Charter of Economic Rights and Duties of States to complete, as the first step in the codification and development of the matter, the elaboration of a final draft Charter of Economic Rights and Duties of States, to be considered and approved by the General Assembly at its twenty-ninth session; Bearing in mind the spirit and terms of its resolutions 3201 (S-VI) and 3202 (S-VI) of 1 May 1974, containing, respectively, the Declaration and the Programme of Action on the Establishment of a New International Economic Order, which underlined the vital importance of the Charter to be adopted by the General Assembly at its twenty-ninth session and stressed the fact that the Charter shall constitute an effective instrument towards the establishment of a new system of international economic relations based on equity, sovereign equality and interdependence of the interests of developed and developing countries’.
- 15.
On this point, see infra para 1.3.
- 16.
This is nothing but a manifestation of the well-known ‘Calvo doctrine’ (from the name of an Argentinian lawyer, who in the 20th Century developed a concept of domestic nationalism to be applied to foreign investments), i.e. the idea that foreign investors are, or ought to be, required to settle their foreign investment disputes exclusively in the courts of the host State, thereby limiting recourse to diplomatic protection. Accordingly, all disputes arising from an investment in a given State would be dealt with by the judicial system of that State. Notably, the doctrine was generally accepted by Latin American States, many constitutions of which contain an express reference to it. For example, under Article 27 of the Mexican Constitution, ‘the State may grant the same right to foreigners, provided they agree before the Ministry of Foreign Relations to consider themselves as nationals in respect to such property, and bind themselves not to invoke the protection of their governments in matters relating thereto; under penalty, in case of non-compliance with this agreement, of forfeiture of the property acquired to the Nation.’ In contrast to most other writers on the subject, who paid little attention to the Calvo doctrine partly due to its failure to enter the corpus of customary international law, Wanyama (2015, pp. 78 et seq.) has recently regarded this doctrine as an essential means by which to protect weaker States against developed nations.
- 17.
Decision of 28 November 1979 (L/4903). Para 1 of this decision states that the Contracting Parties ‘may accord differential and more favourable treatment to developing countries, without according such treatment to other contracting parties’. Cf. Yusuf 1980; Stamberger 2003; Bartels 2010; Choi and Won-Mog 2012.
- 18.
Picone and Ligustro 2002, p. 460 (author’s translation).
- 19.
Sacerdoti 2008, p. 133.
- 20.
Barcelona Traction (Belgium v. Spain), Judgment of 5 February 1970. Para 90 of the judgment, in particular, states as follows: ‘[T]he protection of shareholders requires that recourse be had to treaty stipulations and special agreements directly concluded between the private investor and the State in which the investment is placed. States ever more frequently provide for such protection, in both bilateral and multilateral relations, either by means of special instruments or within the framework of wider economic arrangements. Indeed, whether in the form of multilateral or bilateral treaties between States, or in that of agreements between States and companies, there has since the Second World War been considerable development in the protection of foreign investments. The instruments in question contain provisions as to jurisdiction and procedure in case of disputes concerning the treatment of investing companies by the States in which they invest capital. Sometimes companies are themselves vested with a direct right to defend their interests against States through prescribed procedures.’
- 21.
- 22.
Mauro 2003, p. 122. See also Atik 1995, p. 26, holding as follows: ‘A universal right of establishment would be difficult for the multilateral community to swallow in the near term. FDI [Foreign Direct Investment] is visibly more intrusive on national sensitivities than is the presence of imported goods. Indeed, the fact that Open FDI was not realized within U.S./Canada FTA or NAFTA, particularly with respect to U.S.-sourced FDI in Canada and Mexico, demonstrates this. There is likely no nation so economically and physically secure that it could tolerate high levels of FDI without considerable discomfort. Yet Open FDI embodied in a right of establishment may be useful as an aspiration and a guide to interpretation, being the strongest expression of commitment to a liberal economic order.’
- 23.
Francioni 2007, p. 8. The same author observes that ‘[a]s a consequence of this movement it is safe to say that today the fair and equitable standards of treatment of foreign economic interest are part of the customary body of international law and play a fundamental role in the protection of foreign investors together with the traditional rules of non-discrimination […], public interest justification for a taking of foreign property, and the requirement of just compensation in the event of expropriation.’ Still, the normative basis of FET is far from being clear. On this point, see infra Chap. 2.
- 24.
Weiler 2013, p. 185. Reference is made, for example, to Article 7 of the Convention Relative to the Establishment of an International Prize Court (2 AJIL Spec. Supp. 179, 1989) states as follows: ‘If a question of law to be decided is covered by a treaty in force between the belligerent captor and a power which is itself or whose subject or citizen is a party to the proceedings, the court is governed by the provisions of the said treaty. In the absence of such provisions, the court shall give judgment in accordance with the general principles of justice and equity’ (emphasis added).
- 25.
Even if articulated in different and more cautious terms, a similar opinion may be found in UNCTAD 1999, p. 213: ‘[S]ome guidance on the plain meaning of fair and equitable treatment may be derived from international law in general. Specifically, although international law has had opportunities to incorporate concepts of equity from particular national legal systems, this has not been done. By extension, while maxims of equity from specific legal systems could add certainty to the concept of fair and equitable treatment, this approach should be avoided. At the same time, however, it is possible to identify certain forms of behaviour that appear to be contrary to fairness and equity in most legal systems and to extrapolate from this the type of State action that may be inconsistent with fair and equitable treatment, using the plain meaning approach. Thus, for instance, if a State acts fraudulently or in bad faith, or capriciously and wilfully discriminates against a foreign investor, or deprives an investor of acquired rights in a manner that leads to the unjust enrichment of the State, then there is at least a prima facie case for arguing that the fair and equitable standard has been violated.’ In quoting this report, Weiler 2013, p. 184, footnote 529, is fairly critical, by observing that it ‘first suggested that ‘equity’ in the FET standard may have been an intended reference to English equity, only to caution against the desirability of such an approach thereinafter.’ Still, as may be inferred from Sect. 1.2 above, such a criticism echoes a misunderstanding, since no reference to English equity had been made.
- 26.
Reference is made to the famous note drafted by Hull on 22 August 1938, which states as follows: ‘No government is entitled to expropriate [foreign] private property, for whatever purpose, without provision for prompt, adequate and effective payment thereof’ (text in AJIL (1938), Supll., p. 192).
- 27.
For example, Article 13 of the 1991 Energy Charter Treaty states as follows: ‘(1) Investments of Investors of a Contracting Party in the Area of any other Contracting Party shall not be nationalized, expropriated or subjected to a measure or measures having effect equivalent to nationalization or expropriation (hereinafter referred to as ‘Expropriation’) except where such Expropriation is: 1. (a) for a purpose which is in the public interest; 2. (b) not discriminatory; 3. (c) carried out under due process of law; and 4. (d) accompanied by the payment of prompt, adequate and effective compensation. Such compensation shall amount to the fair market value of the Investment expropriated at the time immediately before the Expropriation or impending Expropriation became known in such a way as to affect the value of the Investment (hereinafter referred to as the ‘Valuation Date’). Such fair market value shall at the request of the Investor be expressed in a Freely Convertible Currency on the basis of the market rate of exchange existing for that currency on the Valuation Date. Compensation shall also include interest at a commercial rate established on a market basis from the date of Expropriation until the date of payment.’ Emphasis added.
- 28.
For example, in Amco I v. the Republic of Indonesia, Award of 20 November 1984 (in «International Legal Materials», 24, 1985, pp. 1022 et seq., pp. 1036–1037), the tribunal held that ‘the full compensation of prejudice, by awarding to the injured party, the damnum emergens and the lucrum cessans is a principle common to the main systems of municipal law, and therefore, a general principle of law which may be considered as a source of international law. Moreover, the same principle has been applied, in cases of breach of contract by a State (and in particular, in cases of breach of a concession contract which are closely comparable to an unjustified revocation of a licence to invest) by a number of authoritative international judicial decisions and awards.’
- 29.
A similar position was taken in 1994 by the Iran-US Claims Tribunal in Shahin Shaine Ebrahimi et al. (Final Award of 12 October 1994, Iran-US Claims Tribunal Reports, 30, 1994, pp. 174 et seq.). According to this decision, indeed, customary international law would limit itself to favouring an ‘appropriate compensation’ standard, whose aim is to ensure that ‘the amount of compensation is determined in a flexible manner, that is, taking into account the specific circumstances of each case. The prevalence of the ‘appropriate’ compensation standard does not imply [hence] that the compensation quantum should be always ‘less than full’ or always ‘partial’. Cf. Levy 1995; Cassese 2005.
- 30.
This expression is to be credited to D’Aspremont 2012, p. 34.
- 31.
On international customary investment law, see more generally D’Aspremont 2012.
- 32.
- 33.
Separate opinion of Judge Higgins, Oil Platforms case (Iran v. US), ICJ Reports 1996, pp. 803 et seq., p. 853.
- 34.
The word ‘principle’, at the moment, is not used in technical terms. For the debate concerning the legal nature of FET, see infra Chap. 2.
- 35.
One example may be found in the Treaty of Amity and Economic Relations (Ethiopia–U.S.), 7 September 1951. Article VIII(1) of that treaty states as follows: ‘Each High Contracting Party shall at all times accord fair and equitable treatment to nationals and companies of the other Contracting Party, and to their property and enterprises; shall refrain from applying unreasonable or discriminatory measures that would impair their legally acquired rights and interests; and shall assure that their lawful contractual rights are afforded effective means of enforcement, in conformity with the applicable laws.’ The Friendship, Commerce and Navigation Treaty between Ireland and the U.S., 21 January 1950, is equally revealing. Article V provides: ‘Each Party shall at all times accord equitable treatment to the capital of nationals and companies of the other Party. Neither Party shall take unreasonable or discriminatory measures that would impair the legally acquired rights and interests of nationals and companies of the other Party in the enterprises which they established or in the capital, skills, arts or technology which they have supplied. Neither Party shall deny appropriate opportunities and facilities for the investment of capital by nationals and companies of the other Party; nor shall either Party unreasonably impede nationals and companies of the other Party from obtaining on equitable terms the capital, skills and technology it needs for its economic development.’ Regarding these agreements, see Vandevelde 1988.
- 36.
- 37.
In more detail, Article 1(a) states that: ‘Each Party shall at all times ensure fair and equitable treatment to the property of national of the other Parties’. Notably, the idea of a multilateral agreement providing a general protection of FET was not abandoned in the decades later, but all the efforts in this sense ended up collapsing. Reference is made to the Draft United Nations Code of Conduct on Transnational Corporations, the last negotiating text of which dates back to 1983, (the text may be found in UNCTC, The United Nations Code of Conduct on Transnational Corporations, Current Studies, Series A (1986), UN Doc ST/CTC/SER A/4, Annex 1) and to the Multilateral Agreement on Investment (MAI), proposed by the OECD in 1995.
- 38.
Weiler 2013, p. 200.
- 39.
In this regard, see Chap. 5.
- 40.
- 41.
In detail, this Article states as follows: ‘1. Each Party shall accord in its territory to covered investments of the other Party and to investors with respect to their covered investments fair and equitable treatment and full protection and security in accordance with paras 2 through 6. 2. A Party breaches the obligation of fair and equitable treatment referenced in para 1 if a measure or series of measures constitutes: (a) denial of justice in criminal, civil or administrative proceedings; (b) fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings; (c) manifest arbitrariness; d) targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; (e) abusive treatment of investors, such as coercion, duress and harassment; or (f) a breach of any further elements of the fair and equitable treatment obligation adopted by the Parties in accordance with para 3 of this Article’.
- 42.
Bernasconi-Osterwalder 2016, pp. 336 et seq.
- 43.
This expression is credited to Collins 2016, p. 127.
- 44.
In this regard, see Hanessian and Duggal 2015.
- 45.
One example may be found in Article 2, para 2, of the BIT Argentina-Great Britain (1993): ‘Investments of investors of each Contracting Party shall at all times be accorded fair and equitable treatment and shall enjoy protection and constant protection in the territory of the other Contracting Party.’
- 46.
See, e.g., Article 10, para 1, of the 1991 Energy Charter Treaty: ‘Each Contracting Party shall, in accordance with the provision of this Treaty, encourage and create stable, equitable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal.’
- 47.
Reference is especially made to Article 1105, para 1, of the NAFTA: ‘Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security’ (emphasis added). Along the same logic, one may consider the already quoted MAI. On the one side, its Preamble states that ‘fair, transparent and predictable regimes complement and benefit the world trading system’; on the other side, the clause concerning the General Treatment provides that ‘each contracting Party shall accord fair and equitable treatment and full and constant protection and security to foreign investments in their territories. In no case shall a contracting Party accord treatment less favourable than that required by international law’ (emphasis added).
- 48.
Bonnitcha 2015, p. 145.
- 49.
Article 1(2) of the ICSID Convention. Part of ICSID is also the arbitration under the 1978 Additional Facility Rules, which was created by the World Bank with the aim of offering arbitration for certain disputes that fall outside the scope of the ICSID Convention such as: i) arbitration of investment disputes between a State and a foreign national, one of which is not an ICSID member State or a national of an ICSID member State; and ii) arbitration of disputes that do not arise directly out of an investment between a State and a foreign national, at least one of which is an ICSID member State or a national of an ICSID member State.
- 50.
It is worth mentioning that the use of UNCITRAL Arbitration Rules in investment cases is often established by an arbitration clause contained in a BIT or in a contract. These clauses, in particular, may either exclusively provide for ad hoc arbitration under the UNCITRAL rules (see the 1991 Netherlands-Czech Republic BIT) or vest the parties (the host State and the investor) with the power of referring their dispute either to ICSID or UNCITRAL arbitration (see the 1990 United Kingdom-Argentina BIT). Generally, in this latter case, should the parties be unable to agree on the competent arbitrator after a certain period, they are bound to submit their dispute to UNCITRAL arbitration.
- 51.
See, for instance, the Italian Supreme Court, Judgment of 19 October 2015, No. 21085, and the German Constitutional Court, Vattenfall, 1 BvR 2821/11, Judgment of 6 December 2016.
- 52.
Hirsch 2011, pp. 783 et seq.
- 53.
Schreuer 2007, p. 92.
- 54.
See, e.g., Schreuer 2005, p. 357 (stating that FET ‘is currently the most important standard in investment disputes.’); Muchlinski 2008, p. 24 (observing that ‘currently the most important standard, from the perspective of investor protection, is the fair and equitable treatment standard.’); Subedi 2008, p. 63 (noting that FET ‘is a major, if not the most important, principle of foreign investment law.’); Montt 2009, p. 294 (according to whom FET ‘has become the most relevant cause of action in international investment arbitration. It has superseded in prominence the expropriation clause, which was traditionally regarded as the most important provision of investment treaties. The FET standard has thus become the ‘alpha and omega’ of the BIT generation’). In the case law, see Suez et al. and Awg Group v. Argentina, ICSID Case No. ARB/03/19, Decision on Liability, 30 July 2010, para 181: ‘Indeed, to borrow the terminology of Hans Kelsen, it is no exaggeration to say that the obligation of a host State to accord fair and equitable treatment to foreign investors is the Grundnorm or basic norm of international investment law.’
- 55.
Rep. of Int’l Law Comm’n, 63d Sess., Apr. 26–June 3, July 4–Aug. 12, 2011, para 365, U.N. Doc. A/66/10; GAOR, 66th Sess., Supp. No. 10 (2011). In detail, Annex D (moving from the assumption that the concept of fair and equitable treatment has assumed considerable prominence in the practice of States and that this prominence is owed in large part to the emergence of bilateral investment treaties as the main sources of law in the field of investment) raises a number of questions relating to the standard, including: (1) whether the FET is synonymous with the International Minimum Standard; (2) whether the FET is an independent standard; (3) whether the FET does represent customary international law; (4) whether the FET is a principle of international law; (5) what are the elements of the FET in practice; (6) in what ways the FET has affected other provisions of bilateral investment treaties.
- 56.
This Article states as follows: ‘Fair and equitable treatment, which is a key standard of investment protection, must accord investors and investments, in particular: (i) due process, (ii) non-discrimination and non-arbitrary treatment, (iii) due diligence, and (iv) respect of legitimate expectations. The notion of legitimate expectations, as applied to the investor, shall not be construed to include mere expectations of profit, in the absence of specific engagements undertaken towards them by competent State organs. Compensation due to an investor for violation of the FET standard shall be assessed without regard to compensation that could be allocated in case of an expropriation, in accordance with the damage suffered by the investor.’
- 57.
Enron v. Argentina, ICSID Case No. ARB/01/3, Award of 21 May 2007, para 257.
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Palombino, F.M. (2018). Introduction. In: Fair and Equitable Treatment and the Fabric of General Principles. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-210-1_1
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