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Fair and equitable treatment between the international and national rule of law
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Zivkovic, Velimir (2019) Fair and equitable treatment between the international and national rule of law. The Journal of World Investment & Trade, 20 (4). pp. 513-552. doi:10.1163/22119000-12340141 ISSN 2211-9000.
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Official URL: http://dx.doi.org/10.1163/22119000-12340141
Abstract
Promoting the rule of law is a potentially strong legitimating narrative for international investment law. Illustrating the interlinkage, the ubiquitous ‘fair and equitable treatment’ (FET) standard embodies distinctly rule of law requirements. But these requirements remain open-textured and allow understanding their meaning in either more ‘international’ or ‘national’ way. An ‘international’ understanding – detached from the host State’s vision on how the rule of law should look like – should remain dominant. But I argue that decision-making under the FET standard should also involve a systematic engagement with how these requirements would be understood in the host State’s law and how they were complied with from that perspective. Whilst not determinative for establishing a breach, this assessment better respects the expectations of the parties, strengthens the persuasiveness of findings and helps enhance the national rule of law as a key contributor to the ultimate goal of investment protection – economic development.
Item Type: | Journal Article | ||||||
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Subjects: | K Law [LC] > K Law (General) | ||||||
Divisions: | Faculty of Social Sciences > School of Law | ||||||
Library of Congress Subject Headings (LCSH): | Investments, Foreign (International law), Dispute resolution (Law), Rule of law | ||||||
Journal or Publication Title: | The Journal of World Investment & Trade | ||||||
Publisher: | Brill | ||||||
ISSN: | 2211-9000 | ||||||
Official Date: | 27 August 2019 | ||||||
Dates: |
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Volume: | 20 | ||||||
Number: | 4 | ||||||
Page Range: | pp. 513-552 | ||||||
DOI: | 10.1163/22119000-12340141 | ||||||
Status: | Peer Reviewed | ||||||
Publication Status: | Published | ||||||
Access rights to Published version: | Restricted or Subscription Access | ||||||
Date of first compliant deposit: | 6 November 2019 | ||||||
Date of first compliant Open Access: | 27 August 2020 |
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