Substantive Protections: Fairness

Introduction

The fair and equitable treatment (FET) standard has been described as the standard in investment treaty disputes that is the most important,[2] most frequently adjudicated[3] and most frequently found to be breached.[4] While historically the expropriation standard was more prevalent, FET claims have grown in popularity as mass nationalisations have become increasingly rare and states adopt less intrusive measures, alongside the development of investment-treaty arbitration.[5] The FET protection is a standard feature in investment treaties.[6] At the time of writing, only 125 out of a total of 2,574 investment treaties do not contain an FET provision (and even then, it may be possible to import FET into those treaties using the most-favoured nation clauses in them).[7]

We set out below the evolution in and different permutations of treaty language on the FET standard before focusing on the notions of ‘fairness’ and exploring in more detail the core components of the FET standard, in particular the protection of legitimate expectations.

Evolution in the different formulations of the FET standard

Unqualified FET standard

The first manifestations of the FET clause in the context of international investment agreements were in the Draft Convention on Investments Abroad (1959) and the Organisation for Economic Co-operation and Development (OECD) Draft Convention on the Protection of Foreign Property (1967), which provided that ‘[e]ach Party shall at all times ensure fair and equitable treatment to the property of the nationals of the other Parties’, without any qualification.[8] The OECD Draft Convention was used by most OECD countries as the basis of their treaty negotiations,[9] and its influence was obvious in the growing number of bilateral investment treaties (BITs) negotiated from the late 1960s.[10] The unqualified FET provision is the most common formulation of the FET standard, currently contained in 1,984 out of 2,574 treaties, for most first-generation treaties.[11]

While there were few investment treaty cases from the 1970s to the 1990s,[12] from the mid-1990s investment treaty claims emerged and quickly rose, almost invariably revolving around an FET claim.[13] This led to a focus on FET and to an intense debate as to whether the unqualified FET standard constituted an autonomous, broad standard distinct from the minimum standard of treatment under customary international law, which had historically been circumscribed to egregious situations.[14] By 2012, it was observed that many tribunals had interpreted the FET standard as self-standing where it is not expressly linked in the treaty to the minimum standard of treatment.[15] However, attempts (many successful) by investors to invoke the unqualified FET standard have resulted in a backlash from states that, as explained below, have reacted by narrowing or qualifying the FET standard in later treaties and even removing the FET protection altogether.

FET linked to international law or customary international law

Some of the earlier treaties linked FET to principles of international law.[16] There were broadly two formulations of this.

The first provided that ‘[i]nvestments shall at all times be accorded fair and equitable treatment . . . and shall in no case be accorded treatment less than that required by international law’,[17] which tribunals have interpreted as providing that the international customary minimum standard operates as a floor and not a ceiling.[18]

The second formulation, such as that set out in Article 1105(1) of the North American Free Trade Agreement (NAFTA) (enacted in 1994), provides that ‘[e]ach Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment . . .’. However, following the NAFTA tribunal’s finding in Pope and Talbot v. Canada in April 2001 that the FET standard in NAFTA was ‘additive’ to the international minimum standard,[19] the NAFTA Free Trade Commission issued Notes of Interpretation in July 2001 clarifying that FET does ‘not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens’.[20] Provisions linking FET to the customary international law standard were subsequently incorporated into the model BITs or BITs of a number of countries, such as the US Model BIT (2012), which provides that ‘[e]ach Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment’,[21] and other treaties involving non-NAFTA countries. For example, the Association of Southeast Asian Nations (ASEAN)–Australia–New Zealand Free Trade Agreement (FTA) provides that ‘[f]or greater certainty: . . . the concepts of “fair and equitable treatment” . . . do not require treatment in addition to or beyond that which is required under customary international law, and do not create additional substantive rights’.[22] The United Nations Conference on Trade and Development (UNCTAD) World Investment Report for 2016 reported that while 2 per cent of earlier BITs from 1962 to 2011 contained FET provisions referring to the customary international law standard, 35 per cent of BITs from 2012 to 2014 contained these provisions.[23] More recently, such provisions have been included in PACER Plus (2017),[24] and the ASEAN–Hong Kong, China SAR Investment Agreement (2017).[25]

However, a number of tribunals have observed in recent years that even where the FET standard under the treaty is limited to the customary international law standard, it does not provoke a major disruption in the level of protection because the customary international law standard has evolved and has become indistinguishable from the autonomous FET standard.[26]

FET with additional substantive content

Given the uncertainty as to the scope of the unqualified FET standard, and from states’ perspective the overly broad content given to it, there has been a recent trend of investment treaties having more developed FET provisions to more clearly circumscribe the content of the FET standard, and notably to preserve more freedom for states to regulate without the FET standard.[27]

Some treaties do so by referring to denial of justice, which has been recognised by commentators and tribunals as indisputably forming part of the FET standard but as imposing a high bar. For instance, the ASEAN Comprehensive Investment Agreement (2009) provides that ‘fair and equitable treatment requires each Member State not to deny justice in any legal or administrative proceedings in accordance with the principle of due process’.[28]

Other treaties list types of behaviour by states that may result in a breach of FET, using qualifiers such as ‘fundamental’ breaches or ‘manifestly’ wrongful behaviour. For example, the Canada–EU Comprehensive Economic and Trade Agreement (CETA) (2016) provides:[29]

A Party breaches the obligation of fair and equitable treatment referenced in paragraph 1 if a measure or series of measures constitutes: (a) denial of justice in criminal, civil or administrative proceedings; (b) fundamental breach of due process, including a fundamental breach of transparency, in judicial and administrative proceedings; (c) manifest arbitrariness; (d) targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief; (e) abusive treatment of investors, such as coercion, duress and harassment; or (f) a breach of any further elements of the fair and equitable treatment obligation adopted by the Parties in accordance with paragraph 3 of this Article.

Similar formulations are found in recent EU agreements, including the EU–Singapore Investment Protection Agreement (2018)[30] and the EU–Vietnam Investment Protection Agreement (2019).[31] The European Commission has stated that the purpose of these provisions is to include a ‘closed text which defines precisely the standard of treatment, without leaving unwelcome discretion to the Members of the Tribunal’.[32]

In addition, some treaties clarify that the FET standard does not prevent a state from modifying its laws. For example, the France–Colombia BIT (2014) states ‘[i]t should also be understood that the obligation to provide fair and equitable treatment does not include a stabilization clause or prevents its legislation from being changed’.[33] In a similar vein, in the Canada–EU CETA, ‘the Parties reaffirm their right to regulate within their territories to achieve legitimate policy objections’,[34] and it clarifies that ‘the mere fact that a Party regulates, including through a modification to its laws, in a manner which negatively affects an investment or interferes with an investor’s expectations, including its expectations of profits, does not amount to a breach of an obligation under this Section [including FET]’.[35]

Removal of the FET standard

While most first-generation BITs contained an FET provision, there has been a reversal of this trend in recent years with some treaties going beyond qualifying the FET standard, and removing it altogether. For instance, India’s model BIT (2016) makes no reference to FET and instead refers only to violations of customary international law:[36]

No Party shall subject investments made by investors of the other Party to measures which constitute a violation of customary international law[37] through: (i) Denial of justice in any judicial or administrative proceedings; or (ii) fundamental breach of due process; or (iii) targeted discrimination on manifestly unjustified grounds, such as gender, race or religious belief; or (iv)manifestly abusive treatment, such as coercion, duress and harassment.

Other recent examples include the Australia–China FTA (2015), which contains only national treatment and most-favoured nation treatment as substantive treaty protections,[38] the amendment to the South African Development Community Investment Protocol (2016), which contains only prohibition against expropriation and national treatment as substantive treaty protections,[39] and the Morocco-Rwanda BIT (2016), which contains the standard substantive protections but excludes the FET standard.[40]

Notions of ‘fairness’

UNCTAD notes that ‘the original purpose and intent behind FET clauses was to protect against the many types of situations of how unfairness may manifest itself, such as, for example, an arbitrary cancellation of licences, harassment of an investor through unjustified fines and penalties or creating other hurdles with a view to disrupting a business’.[41] Commentators note that the concept of ‘equity’, on the other hand, suggests a balancing process between the protection granted to the investor and the state’s regulatory decisions that may be taken in the public interest.[42]

In arbitral practice, tribunals have considered the ordinary meaning of ‘fair and equitable’ as a collective term meaning ‘just’, ‘even-handed’, ‘unbiased’ and ‘legitimate’.[43] Other tribunals have considered the ordinary meaning of ‘fair’ and ‘equitable’ as distinct concepts but defined ‘equitable’ as meaning ‘fair’ and note that ‘[t]he definition of each term uses the other and underlines their relationship’.[44] Some tribunals have also considered that FET needs to be interpreted in a balanced manner, taking into account both state sovereignty and the necessity to protect foreign investment and its continuing flow, without attributing the concept of balance specifically to ‘fairness’ or ‘equity’.[45] Other tribunals have found that while ‘[p]hilosophers and scholars have devoted tomes to the subject of fairness’, their work is not helpful in answering the practical question of what criteria a tribunal should apply to determine if treatment is in breach of FET.[46] Instead, it is more helpful to consider the elements that previous cases have found to be inherent components of the FET standard.[47]

Core elements of FET

Subject to treaty language expressly limiting the content of the FET standard, the concept of FET is inherently flexible and potentially applicable to any type of host state misconduct (including both acts and omissions). Nonetheless, recurring fact patterns and similarities between cases have enabled tribunals and scholars to articulate categories of behaviour that indisputably violate the FET standard.[48] The core components of FET are often said to encompass: (1) the protection of legitimate expectations; (2) the protection against conduct that is arbitrary, unreasonable, disproportionate and lacking in good faith; (3) the principles of due process and transparency; and (4) protection against denials of justice.[49] Of these elements, the protection of investors’ legitimate expectations relied on to make their investments have been described as the ‘dominant element’[50] or the ‘most important function’[51] of the FET standard, and even as ‘a general principle of international law’.[52] We discuss this element in more detail below.

Protection of legitimate expectations

One of the first expressions of the protection of legitimate expectations was famously set out in the Tecmed decision, which provided as follows:

The Arbitral Tribunal considers that this provision of the Agreement [fair and equitable treatment], in light of the good faith principle established by international law, requires the Contracting Parties to provide to international investments treatment that does not affect the basic expectations that were taken into account by the foreign investor to make the investment. The foreign investor expects the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, so that it may know beforehand any and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices or directives, to be able to plan its investment and comply with such regulations . . . The foreign investor also expects the host State to act consistently, i.e. without arbitrarily revoking any preexisting decisions . . . that were relied upon by the investor to assume its commitments as well as to plan and launch its commercial and business activities. The investor also expects the State to use the legal instruments that govern the actions of the investor or the investment in conformity with the function usually assigned to such instruments, and not to deprive the investor of its investment without the required compensation.[53]

Subsequent tribunals have refined this approach and identified further elements relevant for such an FET/legitimate expectations claim to succeed, noting that a claimant must establish that:[54] (1) clear and explicit (or implicit, including through a consistent course of conduct by the state over a number of years)[55] representations were made by or attributable to the state in order to induce the investment; (2) these representations were reasonably relied upon by the claimant; and (3) these representations were subsequently repudiated by the state.

The determination of whether there has been a breach of legitimate expectations is fact specific. Nonetheless, it appears from the case law that the following considerations are relevant to whether a breach of legitimate expectations, and thereby a breach of FET, occurred.

  • The more specific the commitments made by the state to the particular investor or in the context of the particular industry,[56] the higher the chances of success. In contrast, general political or legislative statements or speeches are less likely to form the basis of an FET claim.[57]
  • The more drastic the alteration of the state’s regulatory framework, the higher the prospects of success.[58] For instance, one of the factors that led to a successful FET claim in Eiser v. Spain was the tribunal’s finding that Spain’s repeal of the existing legislation and decision to apply an entirely new method to reduce the remuneration for the claimants’ existing plants deprived the claimants of essentially all of the value of their investment, in breach of their legitimate expectations.[59] The tribunal observed that the factual and legal situation in that case differed fundamentally from that addressed in Charanne v. Spain, which rejected investors’ claims that changes to Spain’s regulatory regime violated FET, as the measures complained of in Charanne had far less dramatic effects, reducing the profitability of plants by 8.5 per cent to 10 per cent.[60]
  • Tribunals may consider whether the state’s changes to the legal framework are disproportionate to the state’s aims,[61] taking into account the context in which the measures were taken, including the economic and social conditions of the host state.[62]
  • Thought may also be given to whether the investor has exercised due diligence, including considering industry practices and expectations,[63] and whether its legitimate expectations were reasonable in light of the circumstances.[64] For example, the tribunal in Masdar v. Spain found that the claimant had undertaken substantial due diligence by commissioning external reports, engaging in multiple discussions with its co-venturer who had detailed knowledge of the regulatory framework, having extensive discussions with the Spanish banks that put up the capital for the projects and consulting law firms in respect of regulatory issues, and was satisfied that the claimant’s legitimate expectations were reasonable.[65]

One key issue that remains subject to debate is the extent to which the general regulatory framework can give rise to legitimate expectations and the scope of any such expectations. This has been amply highlighted by diverging results in a recent (and ongoing) series of cases arising out of changes in Spain’s renewable energy framework. In these cases, some tribunals found that Spain’s general legislation in and of itself did not give rise to any legitimate expectations;[66] other tribunals found that the legal framework created legitimate expectations that the relevant tariffs and premiums would be maintained for the operational life of the plant;[67] while a third category of tribunals found that the legal framework gave rise to the more limited expectation of a reasonable rate of return.[68]

This divergence in results may be explained in part on the basis that there are two schools of thought on the question. The first school of thought considers that statements in general laws or regulations of sufficient clarity and specificity can give rise to protected legitimate expectations.[69] The second school of thought considers that a specific commitment giving rise to legitimate expectations cannot result from general regulations and that something more is needed.[70] That being said, the majority in STEAG v. Spain declined to adopt either school of thought and noted that while general laws may not always give rise to legitimate expectations, it was also wrong to hold that they could never give rise to legitimate expectations as it all depends on the case at hand.[71]

Conclusion

While the historical debate about the relationship between FET and the minimum standard of treatment appears to have taken on less significance in recent years, the content of the FET standard and the basis on which legitimate expectations may be formed remains hotly debated, notably in the current wave of renewable cases against Spain and Italy. Importantly, it remains to be seen how future tribunals will interpret FET provisions in recent treaties, which seek to circumscribe their content, and whether they will still have ‘teeth’. In the meantime, the selection of arbitrators for particular cases will remain important given the divergent views within the investor–state dispute settlement arbitral community as to how the FET standard, in its various formulations, should be interpreted and applied to a given set of circumstances.


Notes

[1] Elodie Dulac is a partner and Jia Lin Hoe is a senior associate at King & Spalding LLP.

[2] Christoph Schreuer, ‘Fair and Equitable Treatment in Arbitral Practice’, 6 J. World Inv. & Trade 358–359 (2005), p. 357.

[3] J Álvarez, The Public International Law Regime Governing International Investment (Cambridge University Press, 2011), p. 177.

[4] Nigel Blackaby et al., Redfern and Hunter on International Arbitration, Sixth edition (Oxford University Press, 2015), Paragraph 8.96.

[5] United Nations Conference on Trade and Development (UNCTAD), ‘Fair and Equitable Treatment: UNCTAD Series on IIAs II: A Sequel’ (2012), available at http://unctad.org/en/Docs/unctaddiaeia2011d5_en.pdf (UNCTAD Series), p. 10.

[6] Total S.A. v. Argentine Republic, ICSID Case No. ARB/04/01, Decision on Liability, 27 December 2010 (Total v. Argentina), Paragraph 106.

[7] See UNCTAD, Mapping of IIA Content, available at https://investmentpolicy.unctad.org/international-investment-agreements/iia-mapping, accessed on 1 September 2021. See also P Dumberry, The Formation and Identification of Rules of Customary International Law in International Investment Law (Cambridge University Press, 2016), p. 145 (noting that in 2014, only 50 out of a total of 1,964 BITs did not contain an FET provision). See, e.g., PAO Tatneft (formerly OAO Tatneft) v. Ukraine, PCA Case No. 2008-8, Award on the Merits, 29 July 2014, Paragraphs 326–365 (where the Russia–Ukraine BIT did not contain an FET clause but FET was imported from the UK-Ukraine BIT through the most-favoured nation clause in the Russia–Ukraine BIT).

[8] UNCTAD Series, p. 5.

[9] ibid.

[10] OECD (2004), ‘Fair and Equitable Treatment Standard in International Investment Law’, OECD Working Papers on International Investment, 2004/03, OECD Publishing, available at https://www.oecd.org/daf/inv/investment-policy/WP-2004_3.pdf, p. 5.

[11] See UNCTAD, ‘Mapping of IIA Content’, available at https://investmentpolicy.unctad.org/international-investment-agreements/iia-mapping, accessed on 1 September 2021.

[12] See UNCTAD, ‘Investment Dispute Settlement Navigator’, available at https://investmentpolicy.unctad.org/investment-dispute-settlement?status=1000, accessed on 1 September 2021, for a list of known investment treaty cases. The first known investment treaty case listed is Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, ICSID Case No. ARB/87/3, Award, 27 June 1990.

[13] See Christophe Bondy, ‘Fair and Equitable Treatment – Ten Years On’, in Jean Engelmayer Kalicki and Mohamed Abdel Raouf (eds), Evolution and Adaptation: The Future of International Arbitration, ICCA Congress Series, Volume 20 (Kluwer Law International, 2019), pp. 203–205.

[14] The minimum standard of treatment was articulated in the early 20th century, with the most cited case being that of Neer (USA) v. United Mexican States (1927), where the Mexican US General Claims Commission held that ‘the treatment of an alien, in order to constitute an international delinquency should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily acknowledge its insufficiency’.

[15] UNCTAD Series, p. xiv.

[16] Of 348 treaties that contain FET provisions that refer to international law, 223 were concluded between the 1960s and 1990: see UNCTAD, ‘Mapping of IIA Content’, available at https://investmentpolicy.unctad.org/international-investment-agreements/iia-mapping, accessed on 1 September 2021.

[17] See, e.g., Article II(3)(a) of the US–Ukraine BIT (signed on 4 March 1994, entered into force on 16 November 1996); Article II(2)(a) of the Argentina–US BIT (signed 14 November 1991, entered into force on 20 October 1994).

[18] See, e.g., Joseph Charles Lemire v. Ukraine II, ICSID Case No. ARB/06/18, Decision on Jurisdiction and Liability, 14 January 2010, Paragraph 253; Azurix Corp. v. The Argentine Republic, ICSID Case No. ARB/01/12, Award, 14 July 2006, Paragraph 361.

[19] Pope & Talbot Inc. v. The Government of Canada, UNCITRAL, Award on the Merits of Phase 2, 10 April 2001, Paragraph 110. See, e.g., Infinito Gold Ltd. v. Republic of Costa Rica, ICSID Case No. ARB/14/5, Award, 3 June 2021, Paragraph 331 (finding that the content of Article II(2)(a) of the Canada–Costa Rica BIT, which provides that ‘[e]ach Contracting Party shall accord investments of the other Contracting Party: (a) fair and equitable treatment in accordance with principles of international law’, is not limited to the minimum standard of treatment under customary international law).

[20] The NAFTA Free Trade Commission’s Notes of Interpretation of Certain Chapter 11 Provisions, 31 July 2001, available at http://www.sice.oas.org/tpd/nafta/Commission/CH11understanding_e.asp.

[21] See, e.g., Article 5(1) of the 2012 US Model BIT.

[22] Chapter 11, Article 6(2)(c) of the Agreement Establishing the ASEAN–Australia–New Zealand Free Trade Area (signed on 27 February 2009, entered into force on 10 January 2010), Article 91 of the Japan–Philippines Economic Partnership Agreement (signed on 9 September 2006, entered into force on 12 November 2008). See also Article 132(2)(a) of the China–Peru FTA (signed on 29 April 2009, entered into force on 1 March 2010); Article 10.10(2)(c) of the Malaysia–New Zealand FTA (signed on 26 October 2009, entered into force on 1 August 2010); Article 10.4(1) of the India–Republic of Korea Comprehensive Economic Partnership Agreement (signed on 7 August 2009, entered into force on 1 January 2010); Article 7(1) and (2) of the Morocco–Nigeria BIT (signed on 3 December 2016, not yet entered into force).

[23] UNCTAD, ‘World Investment Report 2016, Investor Nationality: Policy Challenges’, available at https://unctad.org/system/files/official-document/wir2016_en.pdf, p. 114.

[24] Article 9(1) and (2) of the Pacific Agreement on Closer Economic Relations Plus (signed on 14 June 2017, entered into force on 13 December 2020).

[25] Article 5(1)(c) of the ASEAN–Hong Kong, China SAR Investment Agreement (signed on 12 November 2017, entered into force on 17 June 2019).

[26] See, e.g., Rusoro Mining Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/12/5, Award, 22 August 2016, Paragraph 520. See also Koch Minerals Sarl and Koch Nitrogen International Sarl v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/19, Award, 30 October 2017, Paragraphs 8.44 and 8.47 (referring to the Switzerland–Venezuela BIT, which prefaced the FET standard with the qualification ‘in accordance with the rules and principles of international law’, which the tribunal found was conclusive in confirming the meaning of the FET standard as the duties imposed by customary international law. However, the tribunal found that the result in the case would not be materially different under the autonomous standard); Murphy Exploration and Production Company International v. Republic of Ecuador II, PCA Case No. 2012-16 (formerly AA 434), Partial Final Award, 6 May 2016, Paragraph 208 (‘The international minimum standard and the treaty standard continue to influence each other, and, in the view of the Tribunal, these standards are increasingly aligned’). For a contrary view, see, e.g., Infinito Gold Ltd. v. Republic of Costa Rica, ICSID Case No. ARB/14/5, Award, 3 June 2021, Paragraph 357 (finding that under customary international law, absent a denial of justice, judicial decisions interpreting domestic law cannot breach international law) and Paragraph 359 (holding that ‘judicial decisions that are arbitrary, unfair or contradict an investor’s legitimate expectations may also breach the FET standard even if they do not rise to the level of a denial of justice’). See also Mondev International Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2, Award, 11 October 2002, Paragraph 125.

[27] See, e.g., Yulia Levashova, The Right of States to Regulate in International Investment Law: The Search for Balance Between Public Interest and Fair and Equitable Treatment, International Arbitration Law Library, Volume 50 (Kluwer Law International, 2019), p. 51; Christophe Bondy, ‘Fair and Equitable Treatment – Ten Years On’, in Jean Engelmayer Kalicki and Mohamed Abdel Raouf (eds), Evolution and Adaptation: The Future of International Arbitration, ICCA Congress Series, Volume 20 (Kluwer Law International, 2019), p. 219.

[28] Article 11 of the ASEAN Comprehensive Investment Agreement (signed on 2 February 2009, entered into force on 24 February 2012). See also, e.g., Article 5(1)(a) of the Hong Kong, China SAR–ASEAN Investment Agreement (adopted on 12 November 2017, entered into force on 17 June 2019); Article 3(2)(a) of the Indonesia–Singapore BIT (signed on 11 October 2018, entered into force on 9 March 2021).

[29] Article 8.10(2) of the Canada–EU CETA (signed on 30 October 2016, not yet entered into force). See also Article 9(2) of the Netherlands Model BIT (2019).

[30] Article 2.4(2) of the EU–Singapore Investment Protection Agreement (signed on 15 October 2018, not yet entered into force).

[31] Article 2.5(2) of the EU–Vietnam Investment Protection Agreement (signed on 30 June 2019, not yet entered into force).

[32] European Commission, ‘Investment Provisions in the EU-Canada Free Trade Agreement (CETA)’ (Press Release, February 2016), available at http://trade.ec.europa.eu/doclib/docs/2013/november/tradoc_151918.pdf, p. 2.

[33] Article 4(1) of the France–Colombia BIT (signed on 10 July 2014, entered into force on 14 October 2020).

[34] Article 8.9(1) of the Canada–EU CETA (signed October 30, 2016, not yet entered into force).

[35] id., at Article 8.9(2).

[36] Article 3.1 of the India Model BIT (2016).

[37] For greater certainty, it is clarified that ‘customary international law’ only results from a general and consistent practice of states that they follow from a sense of legal obligation.

[38] Article 9.3 and 9.4 of the Australia–China FTA (signed on 17 June 2015 and entered into force on 20 December 2015).

[39] Agreement amending Annex 1 (Co-operation on Investment) of the South African Development Community Protocol on Finance and Investment (signed on 31 August 2016, not yet entered into force).

[40] Morocco–Rwanda BIT (signed on 19 December 2016, not yet entered into force).

[41] See UNCTAD Series, pp. 6–7.

[42] ibid.; Campbell McLachlan, Laurence Shore and Matthew Weiniger, International Investment Arbitration: Substantive Principles, Second edition (Oxford University Press, 2017), Paragraph 7.24.

[43] See Ron Fuchs v. The Republic of Georgia, ICSID Case No. ARB/07/15, Award, 3 March 2010, Paragraph 430; MTD Equity Sdn. Bhd. & MTD Chile S.A. v. Chile, ICSID Case No. ARB/01/7, Award, 25 May 2004, Paragraph 113; Siemens A.G. v. The Argentina Republic, ICSID Case No. ARB/02/8, Award, 6 February 2007, Paragraph 390; Ioannis Kardassopoulos v. Georgia, ICSID Case No. ARB/05/18, Award, 3 March 2010, Paragraph 430.

[44] National Grid P.L.C. v. Argentina Republic, UNCITRAL, Award, 3 November 2008 (National Grid), Paragraph 168. See also Manchester Securities Corporation v. Republic of Poland, PCA Case No. 2015-18, Award, 7 December 2018, Paragraph 428; Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, Award, 11 September 2007, Paragraph 276.

[45] See, e.g., Manchester Securities Corporation v. Republic of Poland, PCA Case No. 2015-18, Award, 7 December 2018, Paragraph 428.

[46] AWG Group Ltd. v. Argentine Republic, UNCITRAL, Decision on Liability, 30 July 2010, Paragraph 221.

[47] Ioan Micula and others v. Romania I, ICSID Case No. ARB/05/20, Award, 11 December 2013, Paragraphs 504, 518–519; Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award, 4 April 2016, Paragraphs 538 and 539.

[48] Waguih Elie George Siag et al. v. The Arab Republic of Egypt, ICSID Case No. ARB/05/15, Award, 1 June 2009, Paragraph 450.

[49] See, e.g., Infinito Gold Ltd. v. Republic of Costa Rica, ICSID Case No. ARB/14/5, Award, 3 June 2021, Paragraph 355; GPF GP S.à.r.l v. Republic of Poland, SCC Case No. V2014/168, Final Award, 29 April 2020, Paragraph 543.

[50] Saluka v. Czech Republic, UNCITRAL, Partial Award, 17 March 2006, Paragraphs 301–302. See also OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain, ICSID Case No. ARB/15/36, Award, 6 September 2019, Paragraph 426 (‘The Tribunal also notes that other arbitral tribunals have considered the protection of legitimate investor expectations as even the “dominant” or “primary element”, the “dominant feature”, or “one of the major components” of FET’) (emphasis added).

[51] Electrabel v. Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, Paragraph 7.75.

[52] Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award, 22 September 2014, Paragraphs 575–576.

[53] Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award, 29 May 2003, Paragraph 154.

[54] See, e.g., Agility Public Warehousing Company K.S.C. v. Republic of Iraq, ICSID Case No. ARB/17/7, Award, 22 February 2021, Paragraph 162; Glencore International A.G. and C.I. Prodeco S.A. v. Republic of Colombia, ICSID Case No. ARB16/6, Award, 27 August 2019, Paragraph 1367; RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v. Kingdom of Spain, ICSID Case No. ARB/14/34, Decision on Jurisdiction, Liability and Certain Issues of Quantum, 30 December 2019, Paragraph 482.

[55] See, e.g., Occidental Exploration and Production Company v. Ecuador, UNCITRAL, LCIA Case No. UN3467, Final Award, 1 July 2004; Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award, 22 September 2014.

[56] See, e.g., Total v. Argentina, Paragraph 121 (the ‘more specific the declaration to the addressee(s), the more credible the claim that such an addressee (the foreign investor concerned) was entitled to rely on it for the future in a context of reciprocal trust and good faith’); Jurgen Wirtgen and others v. Czech Republic, PCA Case No. 2014-03, Final Award, 11 October 2017, Paragraph 409 (‘To ascertain whether the state has granted a stabilization commitment or given a specific assurance, the form, the content and the clarity of the alleged promise are of critical relevance’).

[57] See, e.g., El Paso v. Argentina, ICSID Case No. ARB/03/15 Award, 31 October 2011, Paragraph 395 (noting that presidential statements can persuade investors to invest but that it is not possible ‘to rely on these proposals to claim legal guarantees’); SunReserve Luxco Holdings S.À.R.L, SunReserve Luxco Holdings II S.À.R.L and SunReserve Luxco Holdings III S.À.R.L v. Italian Republic, SCC Case No. V2016/32, Final Award, 25 March 2020, Paragraph 817 (‘While general statements can create legitimate expectations in theory . . . the general statements made to the public in order to advertise a particular regulatory regime can only create expectations, if any, that are in line with the regulatory regime itself’).

[58] See, e.g., Toto v. Lebanon, ICSID Case No. ARB/07/12 Award, 7 June 2012, Paragraph 244 (‘changes in the regulatory framework would be considered as breaches of the duty to grant full protection and fair and equitable treatment only in case of a drastic or discriminatory change in the essential features of the transaction’); Perenco Ecuador Ltd. v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Decision on Remaining Issues of Jurisdiction and on Liability, 12 September 2014, Paragraph 599 (noting that Law 42, which increased the state’s revenues in an oil concession to 50 per cent, was not in breach of FET as it ‘did not purport to fundamentally alter the structure of the contracts’).

[59] Eiser Infrastructure Ltd. and Energia Solar Luxembourg v. Spain, ICSID Case No. ARB/13/36, Award, 4 May 2017, Paragraph 418.

[60] id., at Paragraphs 367–368.

[61] See, e.g., Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic, ICSID Case No. ARB/14/3, Final Award, 27 December 2016, Paragraph 319 (‘In the absence of a specific commitment, the state has no obligation to grant subsidies such as feed-in tariffs, or to maintain them unchanged once granted. But if they are lawfully granted, and if it becomes necessary to modify them, this should be done in a manner which is not disproportionate to the aim of the legislative amendment . . .’).

[62] See, e.g., National Grid, Paragraph 180 (‘what would be unfair and inequitable in normal circumstances may not be so in a situation of economic and social crisis’); Mamidoil Jetoil Greek Petroleum Products Société S.A. v. Republic of Albania, ICSID Case No. ARB/11/24, Award, 30 March 2015, Paragraph 626 (an investor investing in a country that was in a crisis was not entitled to expect the same level of stability as in countries such as the UK, the US or Japan); Alex Genin, Eastern Credit Limited, Inc. and A.S. Baltoil v. The Republic of Estonia, ICSID Case No. ARB/99/2, Award, 25 June 2001, Paragraph 370 (‘The Tribunal further accepts Respondent’s explanation that the circumstances of political and economic transition prevailing in Estonia at the time justified heightened scrutiny of the banking sector. Such regulation by a state reflects a clear and legitimate public purpose’); Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v. Kingdom of Spain, ICSID Case No. ARB/13/31 Award, 15 June 2018, Paragraphs 570 and 572 (‘It is undisputed that the Tariff Deficit poses a legitimate public policy problem for Spain . . . [but] the Tribunal cannot agree that the Tariff Deficit justified the elimination of the key features of the RD 661/2007 regime and its replacement by a wholly new regime, not based on any identifiable criteria’).

[63] See, e.g., Perenco Ecuador Ltd. v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Decision on Remaining Issues of Jurisdiction and on Liability, 12 September 2014, Paragraph 558 (‘Given the oil industry’s typically expected returns and its experience with governmental responses to market changes, it would be unsurprising to an experienced oil company that given its access to the State’s exhaustible natural resources, with the substantial increase in world oil prices, there was a chance that the State would wish to revisit the economic bargain underlying the contracts’).

[64] See, e.g., FREIF Eurowind v. Kingdom of Spain, SCC Case No. 2017/060, Final Award, 8 March 2021, Paragraph 544 (‘The Tribunal steps in the shoes of [the claimant] . . . and considers whether its alleged expectations were legitimate based on the information it knew and the information it should have reasonably and objectively known according to the expected level of due diligence’); Hydro Energy 1 S.à.r.l. and Hydroxana Sweden AB v. Kingdom of Spain, ICSID Case No. ARB/15/42, Decision on Jurisdiction, Liability and Directions on Quantum, 9 March 2020, Paragraph 600 (‘[G]iven the State’s regulatory powers, in order to rely on legitimate expectations, the investor should inquire in advance regarding the prospects of a change in the regulatory framework in light of the then prevailing or reasonably to be expected changes in the economic and social conditions of the host State’); Parkerings-Compagniet AS v. Lithuania, ICSID Case No. ARB/05/08, Award, 11 September 2007, Paragraph 333 (‘The investor will have a right of protection of its legitimate expectations provided it exercised due diligence and that its legitimate expectations were reasonable in light of the circumstances’), cited in Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018 (Masdar v. Spain), Paragraph 498.

[65] Masdar v. Spain, Paragraphs 497 and 498.

[66] See, e.g., Charanne Construction v. Spain, SCC Case No. 062/2012 Award, 21 January 2016 (Charanne v. Spain), Paragraph 503 (‘in the absence of a specific commitment, the Claimants could not have a reasonable expectation that the regulatory framework established by RD 661/2007 and RD 1578/2008 remain frozen’); NextEra Energy Spain Holdings B.V. and NextEra Energy Global Holdings B.V. v. Spain, ICSID Case No. ARB/14/11, Decision on Jurisdiction, Liability and Quantum Principles, 12 March 2019, Paragraph 584 (‘The Tribunal is not convinced that in the circumstances of the present case the mere fact of Regulatory Framework I was a sufficient basis for the expectation that the Claimants would be guaranteed the terms of Regulatory Framework I. The Framework was based on legislation and legislation can be changed . . . Thus, on its own, Regulatory Framework I could not reasonably have been the basis for an expectation by Claimants that they would be entitled to receive precisely the benefits that such Regulatory Framework prescribed’).

[67] See, e.g., Cube Infrastructure Fund SICAV and others v. Kingdom of Spain, ICSID Case No. ARB/15/20, Decision on Jurisdiction, Liability and Partial Decision on Quantum, 19 February 2019, (Cube v. Spain), Paragraphs 296, 298, 390; 9REN Holding S.a.r.l v. Kingdom of Spain, ICSID Case No. ARB/15/15, Award, May 31, 2019, (9REN v. Spain) Paragraph 297.

[68] Infracapital Fl S.a.r.l and Infracapital Solar B.V. v. Spain, ICSID ARB/16/18, Decision on Jurisdiction, Liability and Decisions on Quantum, 13 September 2021, Paragraphs 586–587; RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux sarl v. Spain, ICSID Case No. ARB/13/30, Decision on Responsibility and on the Principles of Quantum, 30 November 2018 (RREEF v. Spain), Paragraphs 379, 384; BayWa r.e. Renewable Energy GmbH and BayWa r.e. Asset Holding GmbH v. Spain, ICSID Case No. ARB/15/16, Decision on Jurisdiction, Liability and Directions on Quantum, 2 December 2019, Paragraph 464 (drawing support from the RREEF v. Spain decision) and 473.

[69] See, e.g., Cube v. Spain, Paragraph 388 (‘At least in the case of a highly-regulated industry, and provided that the representations are sufficiently clear and unequivocal, it is enough that a regulatory regime be established with the overt aim of attracting investments by holding out to potential investors the prospect that the investments will be subject to a set of specific regulatory principles that will, as a matter of deliberate policy, be maintained in force for a finite length of time. Such regimes are plainly intended to create expectations upon which investors will rely; and to the extent that those expectations are objectively reasonable, they give rise to legitimate expectations when investments are in fact made in reliance upon them’); 9REN v. Spain, Paragraph 295 (‘There is no doubt that an enforceable “legitimate expectation” requires a clear and specific commitment, but in the view of this Tribunal there is no reason in principle why such a commitment of the requisite clarity and specificity cannot be made in the regulation itself where (as here) such a commitment is made for the purpose of inducing investment, which succeeded in attracting the Claimant’s investment and once made resulted in losses to the Claimant’).

[70] See, e.g., Charanne v. Spain, Paragraph 503 (‘the Claimants could not have the legitimate expectation that the regulatory framework established by RD 661/2007 and RD 1578/2008 would remain unchanged for the lifetime of their plants. Admitting the existence of such an expectation would, in effect, be equivalent to freeze the regulatory framework applicable to eligible plants, although circumstances may change’).

[71] STEAG GmbH v. Kingdom of Spain, ICSID Case No. ARB/15/4, Award, 17 August 2021, Paragraph 508.

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