The Practice of States as Evidence of Custom: An Analysis of Fair and Equitable Treatment Standard Clauses in States’ Foreign Investment Laws
16 Pages Posted: 18 Jul 2016 Last revised: 5 Mar 2018
Date Written: May 1, 2016
Abstract
The article addresses a central question: did the fair and equitable treatment standard (FET) in investment regimes become a norm of customary international law? To answer this, Dumberry examines FET clauses in bilateral investment treaties and foreign investment laws of numerous states, as well as arbitral decisions involving allegations of breaches of FET obligations. His analysis shows that States have not engaged independently and consistently in the adoption of FET clauses. Consequently, Dumberry concludes that FET clauses cannot be considered customary international law.
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