Stephan W. Schill

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Fair and equitable treatment is emerging as one of the core concepts of international investment protection and is frequently invoked and applied in investor-state dispute settlement under bilateral and multilateral investment treaties. The frequency with which it is applied and the expansive interpretation given to it by arbitral tribunals contrasts, however, with a lack of clarity concerning the principle’s normative content. This raises salient questions about the accountability of investment tribunals and the legitimacy of the jurisprudence they develop. The paper proposes to understand fair and equitable treatment as an embodiment of the rule of law. It shows that the jurisprudence of investment tribunals on fair and equitable treatment can be summarized under a primarily institutional and procedural concept of the rule for law that has parallels in the major domestic legal systems of liberal democracies and argues that such an understanding can be normatively grounded in the objective of international investment treaties.