Abstract
This chapter discusses the main results of the inquiry, reiterating both the normative basis and the content (in terms of its minimum reach) of FET. Moreover, some concise and final thoughts are given to the relevance of FET within the never-ending debate over the fragmentation of international law as a result of the existence of self-contained regimes.
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- 1.
See ILC, Fifty-eight session, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission finalized by Martti Koskenniemi, A/CN.4/L.682, 13 April 2006. Paragraph 8 of the Report (at 11) refers to investment law in the following terms: ‘The fragmentation of the international social world has attained legal significance especially as it has been accompanied by the emergence of specialized and (relatively) autonomous rules or rules-complexes, legal institutions and spheres of legal practice. What one appeared to be governed by ‘general international law’ has become the field of operation for such specialist system as […] ‘investment law’ […] each possessing their own principles and institutions.’ For a view that tends to underestimate the question of fragmentation in international law, see Conforti 2007.
- 2.
Idem, p. 68.
- 3.
Idem.
- 4.
- 5.
Schill 2009, pp. 280–281: ‘Taken together, investment treaty arbitration thus operate as part of an autopoietic, self-referential, and normatively closed system of law, that overarches the myriad number of bilateral investment treaty relations, unites them under common principles governing international investment relations and contributes to providing a legal framework for the functioning of the global economic system.’
- 6.
Salacuse 2010, pp. 435–436: ‘The use of regime theory as a lens to examine the mass of investment treaties negotiated over the last sixty years would seem to have several potential advantages. First, it offers an analytical framework to understand and capture the essential, common elements of the 3000 legally separate and distinct treaties and to understand the systemic nature of what States have created through the treaty making process. Second, it may enable observers and scholars to better understand the dynamics of the relationships established by these treaties among States and between States and foreign investors […] Third, regime theory may make more visible the political nature and dimensions of these treaties, for political issues are often at the hearth of investment relationships between States and are also deeply imbedded in investor-State disputes, regardless of their applicable legal superstructures […] And finally, one might also suggest that while lawyers and arbitrators do not normally use the term ‘regime’ in referring to investment treaties, they implicitly treat investment treaties as constituting a regime in that they regularly refer to prior decisions applying one treaty in order to interpret a wholly separate treaty. Regime analysis may make explicit what has heretofore been implicit.’
- 7.
Asian Agricultural Products Ltd v. Sri Lanka, ICSID Case No. ARB/87/3, Award of 21 June 1990, para 21. The same opinion has been expressed more generally by Judge Greenwood in the Declaration appended to the Diallo case (Republic of Guinea v. Congo) (Compensation) Judgment of 19 June 2012. Para 8 of the Declaration states as follows: ‘International law is not a series of fragmented specialist and self-contained bodies of law, each of which functions in isolation from the others; it is a single, unified system of law and each international court can, and should, draw on the jurisprudence of other international courts and tribunals, even though it is not bound necessarily to come to the same conclusions.’ On the concept of unity in international law, see Prost 2012.
- 8.
One good example is Phonix Action v. Czech Republic, ICSID Case No. ARB/06/5, Award of 15 April 2009, para 78: ‘[T]he ICSID Convention’s jurisdictional requirement cannot be read in isolation from public international law, and its general principles. To take an extreme example, nobody suggests that ICSID protection should be granted to investments made in violation of the most fundamental rules of protection of human rights, like investments made in pursuance of torture or genocide or in support of slavery or trafficking of human organs.’
- 9.
See, for example, Di Benedetto 2013, pp. 158 et seq.
- 10.
McLachlan 2008, p. 364.
- 11.
- 12.
In the words of McLachlan 2008, p. 374, ‘the term [‘FET’] is undoubtedly the product of the bilateral investment treaty process, adopting consciously new language to what had gone before. But its function has, from the start, been linked to the pre-existing general international law.’
References
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Palombino, F.M. (2018). Conclusion. 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_7
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