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Recent Trends in Fair and Equitable Treatment in Investment Arbitration
Hrčka, Daniel ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
(English) Often evoked by investors before arbitral tribunals and at the same time causing controversy and uncertainty with regard to its contents. Fair and equitable treatment standard of protection (FET) suffers from its vague formulation in bilateral investment treaties but simultaneously this characteristic enables it to fulfil the function of filling gaps left by other standards of protection. This results in a fact that uniform understanding of the standard seems impossible to achieve. Inherent dispute on whether FET amounts only to minimum standard of treatment under customary international law or is rather an autonomous standard is also embodied in various wordings of FET clauses present in the treaties. Unless specific link to minimum standard is made, almost all methods of legal interpretation prove that FET is an autonomous concept. Enumeration of sub-elements of FET in clauses will also not achieve certainty mainly because of disputes on contents of some of these sub-elements. Effort to shed more light on the contents of the standard is achieved by evaluation of values of rule of law as well as requirements of morality and legality (necessary for functioning of every legal system) presented by legal philosopher Lon Fuller. A set of universally accepted principles is extracted from these...
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Recent Trends in Fair and Equitable Treatment in Investment Arbitration
Hrčka, Daniel ; Balaš, Vladimír (advisor) ; Šturma, Pavel (referee)
(English) Often evoked by investors before arbitral tribunals and at the same time causing controversy and uncertainty with regard to its contents. Fair and equitable treatment standard of protection (FET) suffers from its vague formulation in bilateral investment treaties but simultaneously this characteristic enables it to fulfil the function of filling gaps left by other standards of protection. This results in a fact that uniform understanding of the standard seems impossible to achieve. Inherent dispute on whether FET amounts only to minimum standard of treatment under customary international law or is rather an autonomous standard is also embodied in various wordings of FET clauses present in the treaties. Unless specific link to minimum standard is made, almost all methods of legal interpretation prove that FET is an autonomous concept. Enumeration of sub-elements of FET in clauses will also not achieve certainty mainly because of disputes on contents of some of these sub-elements. Effort to shed more light on the contents of the standard is achieved by evaluation of values of rule of law as well as requirements of morality and legality (necessary for functioning of every legal system) presented by legal philosopher Lon Fuller. A set of universally accepted principles is extracted from these...
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Fair and Equitable Treatment and Legitimate Expectations in Investment Disputes
Horáková, Tereza ; Balaš, Vladimír (advisor) ; Trapl, Vojtěch (referee)
The concept of legitimate expectations plays a significant role in international investment law. Although it is only in the past roughly fifteen years that the concept has come to the spotlight, its importance and utilization is on the rise. Generally speaking, the concept of legitimate expectations, under certain conditions, allows a foreign investor to claim compensation in situations where the conduct of a host State creates a legitimate and reasonable expectation that the investor may rely on such conduct, and consequently the host State fails to fulfill those expectations, causing damages to the investor. However, the concept of protection of legitimate expectations has stirred up debates as to the legitimacy of its use in investment law and raised concerns due to its imprecise boundaries and excessively extensive interpretation. Accordingly, it is the goal of this thesis to either confirm or refute two main propositions. The first proposition suggests that the principle of protection of legitimate expectations is an established principle of investment law with traceable origins in both domestic law and general international law. The examination of the first proposition addresses theoretical roots of the concept of legitimate expectations justifying its application in investment law together...
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