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Fair and Equitable Treatment in International Investment Law: The Art of Watching Out for Both the ‘Elephants’ and the ‘Fleas’ in the (Normative) ‘Room’ of Investment Protection

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Roland Kläger, Fair and Equitable Treatment in International Investment Law. Cambridge: Cambridge University Press, 2011. Pp. 410. $113.00. ISBN: 9780521197717.Alexandra Diehl, The Core Standard of International Investment Protection: Fair and Equitable Treatment, Alphen aan den Rijn: Kluwer Law International, 2012. Pp. 664. $216.00. ISBN: 9041138692.Patrick Dumberry, The Fair and Equitable Treatment Standard: A Guide to NAFTA Case Law on Article 1105, Alphen aan den Rijn: Kluwer Law International, 2013. Pp. 354. $216.00. ISBN: 9789041132888.Todd Weiler, The Interpretation of International Investment Law: Equality, Discrimination and Minimum Standards of Treatment in Historical Context. Leiden: Martinus Nijhoff Publishers, 2013. Pp. 525. €164.00. ISBN: 9789004232228.Martins Paparinskis, The International Minimum Standard and Fair and Equitable Treatment. Oxford: Oxford University Press, 2013. Pp. 320. £74.00. ISBN: 9780199694501 (hardcover); 2014. Pp. 350. £29.99. ISBN: 9780198732167 (paperback).

This essay reviews five recent books on the fair and equitable treatment (FET) standard; the reading of all five books under review demonstrates that FET-related discourse is but a delicate exercise of the art of balanced attention and deep understanding (‘watching out’) of the more, as well as the less, obvious methodological issues concerned. Accordingly, on the one hand, the systemic issue of the relationship of FET with the international minimum standard and general international law (the ‘elephant’) is unquestionably central for the interpretation and application of the FET standard. On the other, the concept of ‘creeping’ violations of FET and prior recourse to available remedies as a ‘factor’ in FET analysis, constitute two more normatively delicate issues (the ‘fleas’) which need to be sufficiently dealt with beforehand, so as to have a full picture of the contours of FET in the (normative) ‘room’ of modern investment protection law.

Affiliations: 1: National and Kapodistrian University of Athens, Greece, agourg@law.uoa.gr

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/content/journals/10.1163/22119000-01602006
2015-03-24
2017-09-22

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