Abstract:
Nowadays, the inclusion of the standards of "fair and equitable treatment" and "full protection and security" as two behavioral norms has become a consistent pattern in the vast majority of investment treaties. The frequent reference to these two standards in investment treaties, on the one hand, and their sequential and paired appearance, on the other, raises the question of whether there is a specific relationship between them or whether they are entirely distinct and independent. Arbitration practice on this matter does not reflect a uniform approach. Some arbitral awards consider these two standards—particularly when they appear consecutively in a single provision of an investment treaty—to be identical and equivalent. Some arbitral tribunals, rejecting the approach of equating the two standards, acknowledge a certain (though not complete) overlap between them. Many others, however, regard them as entirely distinct and independent, each possessing its own concept, content, and legal consequences, and therefore requiring separate analysis.In this article, which adopts a descriptive-analytical methodology and relies on library resources, including books and arbitral awards in the field of foreign investment, we conclude that these two standards are entirely distinct and independent of each other. Consequently, a foreign investor seeking to prove a violation of either standard must present their claim in light of the specific content, legal effects, and scope of each standard.
Machine summary:
"4 In general, through induction of arbitral awards, it can be said that matters such as access to courts, absence of unjustified delay and protraction of proceedings, the right to be heard, and the independence and impartiality of the court—which are considered requirements of a fair trial in all legal systems in the world—are also, in international investment law, based on the principle of due process 1.
V. v Venezuela, Award, ICSID Case No. ARB/11/25 (10 March 2015) * Oxus Gold v Uzbekistan (UNCITRAL), Final Award (17 December * Musu, Clara, Trisnamansyah, Purnama (2024), The Role of Trans- parency Standard: Effectivity in Proving the Breach of Fair and Equitable Treatment, Transnational Business Law Journal, Volume 5, Number 1.
Similarly, the positive obligation to provide a legal or administrative system that grants legal security to the investor; for example, enabling the investor to bring a claim or appeal in impartial and effective courts or tribunals regarding violations of domestic laws, is among the obligations recognized for the host state through the "full protection and security" standard; whereas the obligation to refrain from fundamentally changing the legal framework within which the investor has legitimately acquired rights or expectations is considered one of the elements of the "fair and equitable treatment" standard.
" 3- In terms of content and application, considering the developments in arbitral practice regarding these two standards, today some elements, such as legitimate expectations, transparency, due process, observance of legal formalities, and denial of justice, are considered specific components of the "fair and equitable treatment" standard; whereas the "full protection and security" standard is more concerned with protecting the investor and ensuring the physical security of the investment.
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