A Tale of Two Standards: 'Fair and Equitable Treatment' and the Minimum Standard in International Law: The Gillis Wetter Prize

摘要

This article examines the relationship, past, present and future, between the fair and equitable treatment standard and the international minimum standard of treatment for aliens in light of modern jurisprudence and state practice. The provenance of the fair and equitable treatment standard lies in the international minimum standard in customary international law. However, the fair and equitable treatment standard has emerged in investment arbitration jurisprudence as a distinct and relatively broad standard where it is not expressly linked with the international minimum standard. By contrast, the development of the international minimum standard, in accordance with customary international law, has been more cautious: the threshold for violating the standard remains high. This article posits that the difference between the two standards reflects their different purposes and the different methodologies for interpreting treaties and ascertaining customary international law. The development of the fair and equitable treatment standard as a broader standard than the international minimum standard has led to state practice linking the two standards to reduce liability. While it has been suggested that the fair and equitable treatment standard could itself become a part of customary international law, state practice and jurisprudence suggest that an autonomous fair and equitable treatment standard is not part of customary international law.