Towards reforming the fair and equitable treatment standard in International Investment Agreements - By Dr. Yulia Levashova & Prof. Tineke Lambooy (Nyenrode Business University)


One of the most important pillars of investment protection under international law is the understanding that a foreign investor investing in a host state should be treated ‘fairly and equitably.’ The importance of this notion is supported by the inclusion of the fair and equitable treatment (FET) standard in most of the International Investment Agreements (IIAs), as well as its invocation in the vast majority of investment disputes. However, the concern has been expressed frequently that a broad interpretation of this usually openly formulated provision has an adverse impact on the host state’s ‘right to regulate’ in the public interest. These concerns have been voiced particularly as a result of FET claims in which investors have challenged a variety of state decisions in publicly sensitive areas, e.g. renewable energy, waste management, public health issues, and access to water. In this regard, tribunals have often been criticised for attaching insufficient weight in their assessment of the FET standard to a host state’s right to regulate and its duty to fulfil its obligations under other international treaties, such as human rights and environmental treaties.More...

Doing Business Right – Monthly Report – September 2018 - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.


This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked.

The Headlines

Chevron Corporation and Texaco Petroleum Company v The Republic of Ecuador

On 30 August 2018 an international tribunal administered by the Permanent Court of Arbitration in The Hague issued an award in favour of Chevron Corporation and Texaco Petroleum Company, holding that the Republic of Ecuador had violated its obligations under international treaties, investment agreements and international law. The tribunal found that a $9.5 billion judgment handed down by Ecuador’s Supreme Court in the Lago Agrio case was procured through fraud, bribery and corruption. It also found that the Republic of Ecuador had already released the claims that formed the basis of the judgment years before. The tribunal concluded that the fraudulent Ecuadorian judgment is “not final, enforceable, or conclusive under Ecuadorian and international law” and therefore cannot be enforced within or outside of Ecuador and that it “violates international public policy and natural justice”.

Draft Optional Protocol to Business and Human Rights Treaty

On 4 September 2018 the Permanent Mission of Ecuador to the UN and other International Organizations in Geneva presented the ‘Draft Optional Protocol To The Legally Binding Instrument To Regulate, In International Human Rights Law, The Activities Of Transnational Corporations And Other Business Enterprises’ (Optional Protocol). The Optional Protocol focuses on ensuring State Parties to the Optional Protocol establish mechanisms that provide access to remedy for victims of human rights violations in the context of business activities of a transnational character. It also provides individuals and group with the ability to make communications to the Committee of experts. More...