Public Law Studies Quarterly

The Interaction between Sustainable Development and the Fair and Equitable Treatment Standard in International Investment Arbitrations

Document Type : Article

Authors

Mehdi Piri 1
Yasaman Azadi 2

1 Assistant Prof., Department of Public Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran

2 Ph.D. Student in International Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran

https://doi.org/10.22059/jplsq.2022.325999.2806
Abstract
The obligation of the host state to fair and equitable treatment of foreign investors includes maintaining the stability of the investment environment, transparency, compliance with legal procedures and etc. On the other hand, sustainable development is a dynamic concept whose implementation requires constant domestic and international regulation. A question may arise as to how these two principles can be balanced, most particularly in investment arbitrations. In this article, the possible contrast between these two commitments and the case-law of international investment arbitration on this subject will be examined. It will be concluded that the fair and equitable treatment standard can be interpreted with respect to the object and purpose of an investment agreement in light of the other requirements of the agreement, such as sustainable development. With regard to international investment arbitration case-law, it seems that arbitral tribunals have used behavioral criteria to make interaction among such obligations possible.

Keywords

fair and equitable treatment standard
sustainable development
international investment agreements
investment arbitrations
international investment arbitration case-law

  1.  English

    1. A) Book
    2. Dolzer, Rudolf & Schreuer, Christoph (2012), Principles of International Investment Law (2nd Edition), Oxford University Press.
    3. M Franck, Thomas (1995), Fairness in International Law and Institutions, Oxford.

     

    1. B) Article
    2. Bodansky, D. (2003), Rules and Standards in International Law. New York Law School, (March 31, 2003), pp.1-18.
    3. Casey, Anthony J. & Niblett, Anthony (2017), "The Death of Rules and Standards," Indiana Law Journal, Vol. 92 : Iss. 4 , Article 3.
    4. Dolzer, R., (SPRING 2005), “Fair And Equitable Treatment: A Key Standard in Investment Treaties”, The International Lawyer, Vol. 39, No. 1.
    5. Dumberry, Patrick, (2014) "The Protection of Investors’ Legitimate Expectations and the Fair and Equitable Treatment Standard under NAFTA Article 1105", 31(1) Journal of International Arbitration , pp.47-74.
    6. Kläger, R., (2010), “Fair and Equitable Treatment: A Look at the Theoretical Underpinnings of Legitimacy and Fairness”, Journal of World Investment & Trade, 11.
    7. Rincon, C.G.C., (2011), The Relationship between International Investment Agreements and the WTO Legal System-Conflicts and Sustainable Development, Transnational Dispute Management.
    8. Root, Elihu (1910), President of the Society on “The basis of protection to citizens residing abroad, Proceedings of the American Society of International Law at its annual meeting, Vol. 4.
    9. Islam, Rumana (2016), Fair and Equitable Treatment (FET) Standard in Arbitral Practice: Sustainable Development in Context, Bangladesh Journal of Law, Vol. 16, No. 1 at pp. 21-68.
    10. Schill, S.W. (2006), "Fair and Equitable Treatment under Investment Treaties as an Embodiment of the Rule of Law", IILJ Working Paper, Global Administrative Law Series.
    11. Schauer, Frederick (2003), "The Convergence of Rules and Standards." New Zealand Law Revie , pp 303-328.
    12. Thomas, J. (2002), Reflections On Article 1105of NAFTA: History, State Practice And The Influence Of Commentators, 17 ICSID Review- FILJ 21.
    13. Zhu, Ying (2018), "Fair and Equitable Treatment of Foreign Investors in an Era of Sustainable Development" Renmin University of China Law School.

     

    1. C) Documents
    2. North American Free Trade Agreement ‘NAFTA); signed 17 December 1992, entered into force 1 January 1994.
    3. The Agreement Between the Government of Canada and the Government of the United States of America Concerning the Trans boundary Movement of Hazardous Wastes, 1986.
    4. The Basel Convention on the Control of Trans boundary Movements of Hazardous Wastes and Their Disposal, 1989.
    5. The Inter-American Convention for the Protection and Conservation of Sea Turtles, 2001.
    6. The North American Agreement on Environmental Cooperation (NAAEC), January 1, 1994.
    7. The UNESCO World Heritage Convention, 1972.
    8. UN Report of the World Commission on Environment and Development, Paragraph 2, UN DOC.A/RES/42/187 (1987).
    9. Vienna Convention on the Law of Treaties, Concluded at Vienna on 23 May, 1969.

     

    1. D) Cases
    2. Adel A Hamadi Al Tamimi v. Sultanate of Oman, ICSID Case No. ARB/11/33, Award (Nov. 3, 2015).
    3. Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanz., ICSID Case No. ARB/05/22, Award of July 24, 2008.
    4. Case Concerning Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J.
    5. Chemtura Corp. v. Gov’t of Can. UNCITRAL, Award of Aug. 2, 2010.
    6. CMS Gas Transmission Company v. The Argentine Republic, ICSID, Case No. ARB/01/8, Award of May 12, 2005.
    7. Gami Invs., Inc. v. Gov’t of the United Mexican States, UNCITRAL, Final Award of November 15, 2004.
    8. Glamis Gold Ltd v. United States, UNCITRAL, Award of June 8 2009.
    9. Marion Unglaube v. Republic of Costa Rica, ICSID Case No. ARB/08/1, Award of May 16, 2012.
    10. Mondev International Ltd v. United Stated of America, ICSID, Case No. ARB/(AF)/99/2, Award of October 11, 2002.
    11. Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/08, Award of September 11, 2007.
    12. Philip Morris Brands Sàrl v. Oriental Republic of Uru, ICSID Case No. ARB/10/7, Award of July 8, 2016.
    13. S.D. Myers, Inc. v. Gov’t of Can., UNCITRAL, Partial Award (Nov. 13, 2000).
    14. Saluka Investments BV (The Netherlands) v. The Czech Republic, UNCITRAL, Partial Award of Mar. 17, 2006
    15. Sempra Energy International vs. Republic of Argentina, ICSID Case No. ARB/02/16, Award of 28 September, 2007.
    16. Tecnicas Medioambientales Tecmed, S.A vs. United Mexican States, ICSID Case No. ARB (AF)/00/02, Award of 29 May, 2003
    17. Whaling in the Antarctic (Austl. v. Japan: N.Z. intervening), Judgment, 2014 I.C.J.
    18. Yuri Bogdanov & Yulia Bogdanova v. Republic of Mold., SCC Case No. V 2012/09/01 Final Award of Apr 16. 2013.

     

    Refrences In Persian

    1. A) Books
    2. Piran, Hosein (2009), International investment legal issues, Tehran: Ganj-e Danesh Press (In Persian).
    3. Ziaei Bigdeli, Mohammad Reza (2006), International treaty law, Tehran: Ganj-e Danesh Press, 3d Edition (In Persian).

     

    1. B) Articles
    2. Parsi, Arash; Seifi, Seyed Jamal (2019), “The relationship between foreign investor rights and international human rights and environmental obligations”, International Law Revie, Vol. 4 (In Persian).
    3. Pasban, Mohammad Reza & Asghari, Zeinab (2013), “The role of fair behavior in resolving disputes arising from foreign investment with emphasis on the concept of social responsibility of transnational corporations”, Private Law Research, Vol. 8 (In Persian).
    4. Ziaei, Seyed Yaser (2013), “The place of environmental obligations in international investment law”, Public Law Research, Vol. 42 (In Persian).
Public Law Studies Quarterly
Volume 52, Issue 4
Winter 2023
Winter 2022
Pages 1799-1817

  • Receive Date 22 June 2021
  • Revise Date 07 November 2021
  • Accept Date 26 December 2021

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