Although it was undisputed in the institutions of the European Union (eu) that future eu investment protection treaties should provide for clauses on expropriation and fair and equitable treatment their exact content is under discussion. Before this background, this article first addresses the expropriation standard keeping in mind that the eu Commission announced that it intends to reaffirm the State’s right to regulate in future eu investment treaties. Subsequently, it provides an overview of the traditional approaches to fair and equitable treatment (fet) and focusses on the antagonism between a requirement of legal stability and the need to allow for regulatory space. Furthermore, it analyses the new definition of the fair and equitable treatment standard in the Comprehensive Economic and Trade Agreement (ceta) which for the first time aims at defining the contents of fet.
Kriebaum, ‘Regulatory Takings’, supranote 10, pp. 725–727. For tribunals following this approach see, e.g., Methanex v. usa, uncitral (nafta), Award, 3 August 2005, 44 ilm 1343 (2005), Part IV, Chapter C, para. 7; Fireman’s Fund Insurance Company v. Mexico, icsid Case No. ARB(AF)/02/1 (nafta), Award, 17 July 2006, para. 176 (j) and (k); Saluka Investments bv (The Netherlands) v. Czech Republic, uncitral, Partial Award, 17 March 2006, para. 255. On the discussion of this approach see, e.g., Todd Weiler, ‘Methanex Corp. v. U.S.A. Turning the Page on nafta Chapter Eleven?’ (2005) 6 jwit 903, 918–919; Kriebaum, ‘Regulatory Takings,’ supra note 10, p. 726; Joshua Elcombe, ‘Regulatory Powers vs. Investment Protection Under nafta’s Chapter 1110: Metalclad, Methanex, and Glamis Gold’ (2010) 68 University of Toronto Faculty of Law Review 71.