This essay reviews five recent books on the fair and equitable treatment (FET) standard; the reading of all five books under review demonstrates that FET-related discourse is but a delicate exercise of the art of balanced attention and deep understanding (‘watching out’) of the more, as well as the less, obvious methodological issues concerned. Accordingly, on the one hand, the systemic issue of the relationship of FET with the international minimum standard and general international law (the ‘elephant’) is unquestionably central for the interpretation and application of the FET standard. On the other, the concept of ‘creeping’ violations of FET and prior recourse to available remedies as a ‘factor’ in FET analysis, constitute two more normatively delicate issues (the ‘fleas’) which need to be sufficiently dealt with beforehand, so as to have a full picture of the contours of FET in the (normative) ‘room’ of modern investment protection law.
Fair and Equitable Treatment in International Investment Law: The Art of Watching Out for Both the ‘Elephants’ and the ‘Fleas’ in the (Normative) ‘Room’ of Investment Protection
Roland Kläger, Fair and Equitable Treatment in International Investment Law. Cambridge: Cambridge University Press, 2011. Pp. 410. $113.00. ISBN: 9780521197717.
The role of equity and equitable principles in international adjudication has long been subject to debate in international legal scholarship, one of the main reasons being the obscurity in properly identifying the normative foundations of equity in international law. This study addresses this issue in specific by providing a three-tier analytical discourse with a view to delineate equity's normativity. In this sense, it is, first, acknowledged that equity has been envisaged as forming part of the wider corpus of positive international law; then, equity is examined vis-à-vis the doctrine of “sources”; finally, the analysis turns to the “routes of entry” of equity in international law, i.e. via treaty, custom, and, most prominently, equitable principles, themselves “general principles of law” of Art. 38(1)(c) of the I.C.J. Statute.
Following the CJEU’S preliminary ruling in Achmea, the Netherlands announced on 26 April 2018 its intention to terminate all intra-EU BITS, on the basis that termination is the only available option. This article takes issue with that proposition by assessing the Achmea ruling and its effects from the perspective of treaty interpretation under customary rules of international law. It notes how the analysis from the CJEU failed to interpret the Netherlands-Slovakia BIT in accordance with the VCLT, especially by not departing from the presumption against the incompatibility of the BIT with EU law. This article also argues how and why joint interpretations by parties to intra-EU BITS, as authentic expressions of their common understanding, may constitute an effective alternative to termination or amendment of intra-EU BITS in the wake of the Achmea judgment. In fact, this is a solution that was already applied by the European Commission in 2003 in relation to the BITS of the eight (then) accession or candidate states (all now EU Member States) with the United States. Furthermore, this could potentially constitute another option for policy-makers so as to maintain compatibility of intra-EU BITS with EU law, as well as other international agreements between Member States equipped with dispute settlement mechanisms, through treaty interpretation.