The fair and equitable treatment standard remains the most frequently invoked provision in investment treaty arbitration. This article examines the recent case law and identifies the key trends.
The fair and equitable treatment (FET) standard is the cornerstone of modern investment treaty protection, appearing in virtually every bilateral investment treaty and multilateral investment agreement. Despite its ubiquity, the content of the standard remains contested, with arbitral tribunals adopting divergent approaches to its interpretation and application.
This article examines the recent case law on the FET standard, with particular focus on the legitimate expectations doctrine, the obligation of transparency, and the protection against arbitrary and discriminatory measures. It draws on the authors' experience in a number of leading investment treaty arbitrations, including the landmark award in Sahara Energy Ltd v. State of Maghrebia (ICC 2022).
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About the Author
Amara Diallo KC
King's Counsel
Amara Diallo KC is widely regarded as one of the leading investment treaty arbitration practitioners at the international Bar. She has acted as advocate and arbitrator in over 80 international arbitrations, with a particular focus on disputes in the energy, mining, and infrastructure sectors. Amara is a member of the ICC International Court of Arbitration, a Fellow of the Chartered Institute of Arbitrators, and sits on the ICSID Panel of Arbitrators. She is fluent in English, French, and Arabic.