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Call # K2400 .K53 2011
Author Kläger, Roland, 1982-
Title 'Fair and Equitable Treatment' in International Investment Law / Roland Kläger
Imprint Cambridge, UK ; New York : Cambridge University Press, 2011, ©2011
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 INTL  K2400 .K53 2011    AVAILABLE

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Descript. xli, 361 pages ; 24 cm
Series Cambridge Studies in International and Comparative Law
Cambridge studies in international and comparative law (Cambridge, England : 1996)
Note Includes bibliographical references (pages 321-352) and index
Summary/Abstract "A breach of fair and equitable treatment is alleged in almost every investor-state dispute. It has therefore become a controversial norm, which touches many questions at the heart of general international law. Roland Klager sheds light on these controversies by exploring the deeper doctrinal foundations of fair and equitable treatment and reviewing its contentious relationship with the international minimum standard. The norm is also discussed in light of the fragmentation of international law, theories of international justice and rational balancing, and the idea of constitutionalism in international law. In this vein, a shift in the way of addressing fair and equitable treatment is proposed by focusing on the process of justificatory reasoning"-- Provided by publisher
"Fair and Equitable Treatment in International Investment Law A breach of fair and equitable treatment is alleged in almost every investor-state dispute. It has therefore become a controversial norm, which touches many questions at the heart of general international law. Roland Klager sheds light on these controversies by exploring the deeper doctrinal foundations of fair and equitable treatment and reviewing its contentious relationship with the international minimum standard. The norm is also discussed in light of the fragmentation of international law, theories of international justice and rational balancing, and the idea of constitutionalism in international law. In this vein, a shift in the way of addressing fair and equitable treatment is proposed by focusing on the process of justificatory reasoning"-- Provided by publisher
Subject International commercial arbitration
Investments, Foreign (International law)
Investments, Foreign -- Law and legislation
OCLC # 670484641
751507353
Table of Contents
 Forewordxiii
 Acknowledgementsxv
 Table of casesxvi
 Table of treatiesxxiv
 List of abbreviationsxxxvi
1.Introduction1
 Part I The construction of fair and equitable treatment7
2.Fundamentals for the construction of fair and equitable treatment9
A.Conventional basis of fair and equitable treatment9
1.No reference to fair and equitable treatment9
2.Hortatory references to fair and equitable treatment11
3.Legally binding references to fair and equitable treatment13
a.Conventional variations of fair and equitable treatment14
b.Fair and equitable treatment in combination with other standards15
c.Fair and equitable treatment combined with a reference to general international law17
d.Fair and equitable treatment combined with a reference to customary international law18
e.Fair and equitable treatment contingent on domestic law20
f.Conclusion: increasing variety of treaty language21
B.Institutional, economic and functional basis of fair and equitable treatment22
1.International investment process23
a.Underlying ideologies23
b.proliferation of international investment agreements24
c.dynamics of investment treaty arbitration26
2.effectiveness of international investment agreements28
3.Functionality of investment arbitration32
a.Methodological approaches to fair and equitable treatment32
b.function of arbitrators35
C.Fair and equitable treatment in light of the general rules of interpretation38
1.Recapitulating the general rules of interpretation38
2.Applying the general rules of interpretation40
a.Literal meaning of fair and equitable treatment41
b.Adjacent context42
c.Object and purpose43
3.Underdetermination of the general rules of interpretation45
3.Fair and equitable treatment and the international minimum standard48
A.emergence of a controversy48
1.international minimum standard48
2.equating approach55
3.plain meaning approach59
B.Discussion concerning Article 1105 of the NAFTA61
1.Jurisprudence up to the FTC note of interpretation62
a.Metalclad and S.D. Myers approach62
b.Pope & Talbot final merits award67
2.FTC note of interpretation on Article 1105(1) of the NAFTA70
3.Debate after the FTC note of interpretation72
a.Legitimacy of the FTC note of interpretation72
b.Evolutionary character of the customary minimum standard74
C.External reception of the NAFTA discussion76
1.controversy in non-NAFTA jurisprudence77
a.Occidental Exploration & Production Co. (OEPC) v. Ecuador77
b.CMS Gas Transmission Co. v. Argentina79
c.Saluka Investments BV v. Czech Republic81
d.Azurix Corp. and others v. Argentina83
2.disappearance of a controversy?85
4.role of international law in the construction of fair and equitable treatment89
A.Fragmentation and international investment law89
B.Impulses from international law for the construction of fair and equitable treatment93
1.General clauses as gateways93
2.gateway character of fair and equitable treatment94
3.Gateway examples97
a.Case concerning Oil Platforms97
b.Mox Plant dispute98
c.European Court of Human Rights99
d.Article XX of the GATT100
C.Systemic integration of international law arguments101
1.Relevant rules of international law102
a.Lex specialis rules102
b.matter of limited jurisdiction103
2.Applicability between the parties107
3.Inter-temporality108
D.Conclusion: the integrative construction of fair and equitable treatment110
 Part II The concept of fair and equitable treatment113
5.Conceptual challenges115
A.Conceptual problems in arbitral jurisprudence115
1.Topoi in arbitral jurisprudence116
2.Quality of the concept119
B.Conceptual suggestions from legal scholarship121
1.Fair and equitable treatment as a 'standard'122
2.Fair and equitable treatment as an embodiment of the rule of law125
6.Fair and equitable treatment and justice129
A.Fair and equitable treatment as an embodiment of justice129
1.Connections between fair and equitable treatment and justice129
2.rise of justice in international legal relations132
3.Theories of international justice135
a.Cosmopolitanism135
b.Communitarism137
c.Rawls' Law of Peoples138
B.Franck's theory on fairness in international law140
1.Legitimacy141
2.Equity142
3.Fairness discourse144
C.Fairness discourse on fair and equitable treatment146
1.Stages of a legal discourse146
2.Aspects of stability and change148
3.imperative of balancing151
7.Principles of fair and equitable treatment154
A.Substantive principles154
1.Sovereignty154
a.Meaning of sovereignty in the context of international investment law155
b.Sovereignty in arbitral jurisprudence159
c.relative weight of sovereignty163
2.Legitimate expectations164
a.relevance of expectations in general165
b.Investors' expectations in arbitral jurisprudence169
i.Stability of the overall legal framework169
ii.Stability in the administrative conduct175
iii.Stability in the contractual relationship180
c.relative weight of investors' expectations186
3.Non-discrimination187
a.General meaning of non-discrimination188
b.Non-discrimination in arbitral jurisprudence189
c.relative weight of non-discrimination195
4.Sustainable development197
a.Emergence and meaning of sustainable development197
b.Fair and equitable treatment and sustainable development203
c.Sustainable development in arbitral jurisprudence206
d.relative weight of sustainable development211
B.Procedural principles213
1.Fair procedure213
a.General concepts of procedural fairness214
b.Procedural fairness in arbitral jurisprudence217
i.Denial of justice217
ii.Administrative due process225
c.relative weight of procedural fairness227
2.Transparency227
a.General meaning of transparency228
b.Transparency in arbitral jurisprudence230
c.relative weight of transparency234
C.structure, intensity and rationality of review235
1.Proportionality as structural element236
a.General meaning and function of proportionality236
b.Proportionality in arbitral jurisprudence240
2.Intensity of review246
a.Variability of the intensity of review246
b.Intensity of review in times of economic crisis248
3.Rationality deficits250
a.Structural bias in investment treaty arbitration251
b.Rationality of balancing and legal politics253
D.Conclusion: principled fairness256
 Part III The position of fair and equitable treatment in the international legal system259
8.Fair and equitable treatment in the system of international law sources261
A.categorisation of fair and equitable treatment261
1.Fair and equitable treatment as a purely conventional norm?262
2.Fair and equitable treatment as a norm of customary law?265
3.Fair and equitable treatment as a general principle of law?271
B.principles of fair and equitable treatment and the sources of international law273
1.general characteristics of principles273
2.normative status of the principles of fair and equitable treatment277
9.Fair and equitable treatment in the system of international investment law281
A.Interplay with other standards of investment protection281
1.National treatment281
a.Meaning of national treatment281
b.Intersections with fair and equitable treatment285
2.Most-favoured-nation treatment286
a.Meaning of most-favoured-nation treatment286
b.Intersections with fair and equitable treatment287
3.Arbitrary or discriminatory measures288
a.Meaning of arbitrary or discriminatory measures288
b.Intersections with fair and equitable treatment290
4.Full protection and security291
a.Meaning of full protection and security291
b.Intersections with fair and equitable treatment293
5.Expropriation295
a.Meaning of expropriation295
b.Intersections with fair and equitable treatment296
6.Umbrella clause299
a.Meaning of the clause299
b.Intersections with fair and equitable treatment302
B.Fair and equitable treatment between dispensability and master norm303
1.Fair and equitable treatment as an absolute obligation?304
2.Fair and equitable treatment as a gap-filling obligation?306
3.Fair and equitable treatment as an overriding obligation?308
C.Conclusion: fair and equitable treatment and the idea of constitutionalism310
10.Conclusion317
 Bibliography321
 Index353