From Collision to Collaboration
Elgar International Investment Law series
Chapter 7: The fair and equitable treatment standard of protection and intellectual property investments
The roots of the Fair and Equitable Treatment (FET) standard in the field of international trade can be traced back to the 1948 Havana Charter for an International Trade Organization which, although it never entered into force, provided under Article 11(2) that: The Organization may, in such collaboration with other inter-governmental organizations as may be appropriate: (a) make recommendations for and promote bilateral or multilateral agreements on measures designed: (i) to assure just and equitable treatment for the enterprise, skills, capital, arts and technology brought from one Member country to another; . . . However, in spite of the continuous affirmation of the FET principle in international trade agreements since 1948 and its consecration in ‘[n]early all recent BITs require[ing] that investments and investors covered under the treaty receive “fair and equitable treatment”’, coupled with the fact that the standard ‘has acquired prominence in investment arbitration as a consequence of the fact that other standards traditionally provided by international law might not in the circumstances of each case be entirely appropriate’, the clear meaning of the standard remains to this day uncertain.
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