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This book surveys and analyses the nature of FET as a “new” rule of customary
law that is non-contingent and absolute in that it protects a given entity
irrespective of the treatment which may be accorded to others. The author
explores whether the often-heard criticism of the international investment
protection regime is justified. The overarching questions are: Does the
system`s mixture of private arbitration and public law indeed undermine
accountability and independence in judicial decision-making? Does it trump
principles of legislative supremacy and, in the end, alter a central tenet of
representative democracy? Among the far-reaching aspects of the subject
covered are the following:
the relationship of FET to human rights and other standards of protection;
assumptions about reciprocity and mutuality;
the “treatification” of foreign investment law;
the special significance of the Energy Charter Treaty;
ICSID as a self-contained system;
identifying limitations on the parties’ freedom of choice;
the protection of legitimate expectations;
the relevance of investors’ conduct in FET proceedings;
due process in administrative decision-making, and
denial of judicial justice.
Relevant case law is examined, and there are detailed descriptions of the main
dispute resolution forums – ICSID arbitration especially, but with due
attention to the new UNCITRAL, the ICC Rules, the SCC and the LCIA Rules. This
is a significant contribution to the debate over a controversial concept and
its normative underpinnings. By analysing how states are bound by investment
treaty obligations and how arbitrators deal with them, this book explains how
the standards are continually shaped and scrutinized to respond to the needs
of the actors engaged in an investment relationship. Although it is of great
interest for legal academics and jurists, it is its practical analysis that
will be most welcomed by arbitrators, corporate counsel, and government
Acknowledgements. Preface . Foreword, List of Abbreviations. Introduction.
Part I: The Framework of Protection. 1. Sources of the FET
Standard. 2. Forums for Solving Investment Disputes Dealing with FET.
3. Concluding Analysis: The Investment Regime as a Regime of Networks.
Part II: The Content and Scope of the FET Standard. 1. Determining
the Applicable Law. 2. Direct or Derivative Rights? 3. The
Content of the FET Standard. Part III: Concluding Remarks. 1.
All Assumptions Combined. 2. Final Conclusion and Outlook.
Books/Compilations/Monographs. Articles/Contributions. Studies/ Official
Reports/Compilations. Dictionary/Encyclopedia. Table of Cases. Table of
Treaties and Conventions.
"The comprehensive doctoral thesis provides much food for thought on an
important, ubiquitous and practically relevant treaty standard. While the book
preserves the structure of an academic thesis rather than a practitioner's
handbook, the meticulous review and analysis of the arbitration awards
provides helpful guidance and classification of typical scenarios covered by
the broadly formulated fair and equitable standard. Surely, as long as this
standard remains centre-stage in investment arbitration cases, Diehl's book
will find many readers."
By Jan Schäfer, Partner at King & Spalding, Frankfurt, and published in Global
Arbitration Review, November 2012.