The Minimum Standard of Fair and Equitable Treatment under the International Law on Investments. An Essay on a conventional technique of substantial regulation

The spreading of the standard as a technique of stating the conventional rule constitutes a peculiarity of the international law of foreign direct investment as a system having erected the private authority of arbitral tribunals in a method of transnational governance. Suffused with fuzzyness and a priori indeterminacy, the conventional utterance of fair and equitable treatment convokes, during its jurisdictional implementation, a monitoring of the legacy of national public policies against the requisites of international law. If the conventional source of fair and equitable treatment remains a major paradigm to figure it out, the alleged substantial equivalence of this norm with the customary international law minimum standard of treatment should be deemed to constitute a bygone legal question. Fair and equitable treatment ought to be considered as a minimum standard inherent to international investment law albeit different from the customary international law minimum standard of treatment. Exercise of the capacitation granted by the conventional utterance of fair and equitable treatment has prompted emergence of good governance obligations incumbent upon States as regards the administrative and jurisdictional treatment owed to investors, as well as establishment of norms of conduct binding upon foreign investors. Whereas the efficacy of the conventional undertaking of fair and equitable treatment is affected by the measure of deference owed to national determinations, compensation of a recorded breach of fair and equitable treatment is duly influenced by the so-called sequencing issue and the absence of a conventionally-stated method of compensation . At last, by broadening and deepening the content of the fair and equitable treatment norm, proceduralization is favouring its perpetuation in order to consolidate an international law of foreign direct investment operations fully integrated.