Author: Alexander Borgoyakov
Keywords: foreign investments; international customary law; international investment arbitration; international minimum standard; national standard; standard of fair and equitable treatment; standard of full protection and security
The problem of fair and equitable treatment and full protection and security of foreign investments is one of the most complicated issues of international investment law. It arises out of a continuous discussion regarding the nature and content of the rules of law constituting the legal framework of foreign investments in a host state and raises a number of fundamental issues of public international law, including the process of forming the rules of international customary law. This article analyses the essence of this problem, its genesis in the historical retrospective, and the approaches of solving problems that are raised by it. In particular, this article reviews and analyses the historical background preceding the formation of the international minimum standard of treatment of aliens as customary rule of public international law and the reasons for including the standards of fair and equitable treatment and full protection and security in international treaties on promotion and mutual protection of foreign investments. It also analyses the content of the standards of fair and equitable treatment and full protection and security, including the structure of their elements, and the practice of their interpretation and application in international investment arbitration proceedings. It is argued in the article that these standards, despite the fact that they are similar to the minimum standard of treatment of aliens, are treaty rules of public international law and hence shall be construed in accordance with the requirements of the Vienna Convention on the law of treaties from 1969. Finally, the article suggests practical approaches for interpreting these standards in international investment arbitration proceedings. Thus, the standards of fair and equitable treatment and full protection and security may be construed with a link to the rules of international customary law when certain disputes are resolved. For example, the express indication in a treaty that the standards are a part (or an equivalent) of the international minimum standard may be considered as an argument to construe such standards as elements of or equivalent to the international minimum standard for the purposes of interpreting such a treaty.
About the author: Alexander Borgoyakov – Candidate of Sciences (Ph.D.) in Law, legal practitioner, Moscow, Russia.
Citation: Borgoyakov A. (2018) Spavedlivyy rezhim i bezopasnost' inostrannukh investitsiy v mezhdunarodnom prave [Fair treatment and security of foreign investments in international law]. Mezhdunarodnoe pravosudie, vol.8, no.3, pp.111–127. (In Russian).
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