Crony Capitalism in Canada

Introduction

My interest in writing this paper was to combine my understanding of Canadian law and its economic systems to discuss unsustainable practices in current government policies and develop suggestions for future improvements. I submit that my previous exposure to Marxist perspectives regarding income inequality directed my inquiries towards more left-leaning ideologies; however, I have come to accept that the promotion of healthy marketplaces can achieve a sustainable future for Canada and its provinces. Over the last decade I have been attracted to a variety of topics of academic research including, financial engineering and portfolio development, Canadian education policies, and foreign investment procedures.

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International Investment Protection: Examining Human Rights Implications for the Principle of Fair and Equitable Treatment

Introduction

The global proliferation of international investment agreements (IIAs) and the inclusion of the principle of fair and equitable treatment (FET) in over 2000 investment treaties has resulted in the development of a broad scope of legal protections to foreign investors. This has been accomplished through investment treaties, private contractual provisions between transnational corporations and “host-states”, as well as through the resulting international investor-state jurisprudence.

This paper will explore the significance of human rights within the sphere of international investment arbitration. A breach of fair and equitable treatment is central in almost every investor-state dispute.[1] Therefore, the majority of international investment arbitration decisions can be examined by their effects on human rights, generally, within host-states.

The FET principle has propagated its tendrils into many aspects of international investment law, and has had an influence in almost every foreign-investor’s legal dispute involving international investment arbitration tribunals around the globe. An analysis of the scope and use of the FET principle reveals an entrenchment of global-capitalist interests, which guarantees a legally binding platform for the weighing of human rights against financial investment interests.

“Perhaps the greatest source of distress for developing, capital-importing states has been what is referred to as the ‘pro-investment bias’ of international investment arbitration. In other words, not only have capital-importing states found that investment arbitration has been used by investors more aggressively than originally anticipated, but so too have they found investment tribunals overly eager to adopt broad interpretations of investment provisions that illegitimately expand their application in favour of investors and at the expense of host states. The list of grievances is long… From a substantive standpoint, it is argued that the fair and equitable standard has been improperly extended beyond guarantees of procedural fairness and due diligence to provide excessive protection for foreign investments.”[2]

The nature of investor-state arbitration which is built on IIAs, combined with administrative procedures which allow parties to select their preferred arbitrator, furthers the financial interests of transnational corporations, and potentially the interests of foreign governments holding majority shareholder positions. Claimants in international investment tribunals necessitate host-states’ vast financial commitments to legal and investigatory expenses; and as some corporations’ profits are now greater than the GDP of some countries, the asymmetrical protections which disproportionately benefit investors now have the potential to affect the global economy.

 

 Legal Sources of the FET Principle 

International Investment Agreements (IIAs) 

Without treaty restrictions, states have freedom in economic activities therefore economic independence is an essential part of sovereignty and any threat to economic independence is a threat to sovereignty.[3] Multilateral and bilateral investment treaties (BITs) increasingly adopted the FET principle starting in the early 1990’s. Prior to this textual inclusion, the FET principle was not expressed or defined anywhere within the sphere of international investment law.

This principle was first introduced following World War II, to afford foreign investors a minimum level of legal protection over their invested capital. Initially, the FET principle was expressed as pre-ambulatory language (therefore all-encompassing of the treaty), but could also be found separately within its own clause or provision. Due to the vaguely-worded concept of fairness and equity in regards to host-states’ treatment of foreign investments, the interpretations of the FET principle have been continuously produced from arbitration initiated by transnational corporations due to a reduced expectation in financial returns as a result from perceived unjust host-state actions. This may sometimes cause individual translations of the FET principle on a case-by-case, ad-hoc basis.

Customs and General Principles of Law

Customary international law requires the factual existence of a consistent state practice that is engaged in out of a sense of legal obligation. This results in a higher legal threshold to find a breach of a treaty’s FET provision, especially when the principle is linked to specific state-actions.[4] There existed no obligation in customary law to trade with, nor taking sanctions against, other states until the production of the United Nations charter which suggests that sanctions imposed which are not approved by the UN Security Council would be a breach of state obligations.[5] The FET principle is now one part of three concepts which are recognized as forming the customary international law minimum standard of treatment; these minimum standards are still applicable to investment disputes, even if no BIT exists.[6]

The parallels to other sources of international law are mainly due to the fact that FET inherently incorporates argumentative principles which are often recognized as norms of customary law or general principles of law, but which also act at a more abstract level. This results in arguments derived from these principles which are taken into account by arbitral tribunals in order to justify their decisions on other investment protection standards. [7] The intersections that exist between FET and various other provisions of investment agreements arise mainly from being phrased in similarly vague terms.

Sub-Principles of the Fair and Equitable Treatment Standard

 

The initial intended economic purpose for investors and home-state negotiators was to include the principle of fair and equitable treatment in international investment law to stimulate the flow of foreign investment into “host-states” (capital importers) generally, by providing a base-level of legal protection to “home-state” (capital exporter) investors. The concept of FET was tied to early international customs, vaguely formulated, and repeatedly re-interpreted by arbitration tribunals – inviting an infinite range of perceived injustices to be claimed by investors. The general purpose of FET is to protect investors against serious abuse and arbitrary or discriminatory host-state actions, and it is the principle most frequently relied upon by investors, and has resulted in the most successful claims.

The FET principle is not applied as a relative standard, therefore tribunals’ analyses are not based on how a state treats their own nationals and their investments. The uncertainty in debate around the FET principle can lead to ‘regulatory chill’ as there is significant risk in the way FET is applied to constrain state sovereignty and their abilities to regulate in the public interest. [8] Encompassed within the FET principle are the concepts of “sovereignty, the protection of legitimate expectations, pacta sunt servanda, non-discrimination, sustainable development, fair procedure, due process, denial of justice, transparency and proportionality.”[9]

Typical FET cases have sought to address disputes over issues surrounding the granting or withholding of licenses for investments or a fundamental change in the law which affects the “investment climate”. International investment tribunals’ assessments of the treatments accorded to investors have tended to focus on either the concepts of legitimate expectations and/or due-process.[10]

The FET principle’s protection from a “denial of justice” (violation of due-process) has translated into a breach of the standard in the course of the host-state’s judicial process, a review of administrative action, or a breach of the standard in the investor’s treatment by the executive.[11] This evolution could now include claims of states’ breach of FET by failure to provide adequate legal procedures available to contest decision making related to an “investment climate”, affecting democratic decision making or adding additional legal fees to governments defending their policies.

The most favoured nation (MFN) principle is one of the oldest international economic treaty relationships, but is only valuable when a third-party is also enjoying the privilege.[12] The inclusion of a MFN clause within a bilateral investment treaty (BIT) between two states which also lacks a provision referring to FET will still afford protections under the FET principle if the host-state is concurrently obligated to afford FET protections under a third-party bilateral investment treaty.[13]

FET has been perceived by home-state (capital exporting) trade-negotiators as a useful tool when combined within established international legal doctrines to increase the scope of arguments available to investors who allege perceived injustices. However, for host-states (capital importers), the inclusion of the FET principle may be only marginally beneficial if its scope is qualified by a connection to the minimum standards of treatment of aliens under international customary law. 

 

Various Expressions of the FET Principle

The most favourable option for host-states which are capital importers is if no FET provision exists in an IIA between two states; this means that the customary international law minimum standard of treatment of aliens still applies. If the FET clause is linked to the minimum standard of treatment of aliens under customary international law, or tied to international law, it will be interpreted as a provision which is intended to limit the scope of the application of the FET principle. Similar examples include clauses which contain references to FET plus a list of prohibitions to clarify its meaning (or no FET, but a specification of prohibited state-actions). Often, these qualifications include obligations or elements which are usually already included within the FET principle and therefore redundant.

The option which provides the maximum protection to investors would be an unqualified FET provision, which would then be left to be interpreted autonomously by the investigating tribunal.[14]

Interestingly, host-states defending their actions in cases where no FET principle is referenced in their IIA with the plaintiff’s home-state but a MFN clause exists, if another IIA with a third-party state includes a FET provision it means that equal protections under that FET principle will be incorporated into the treaty via the MFN clause.[15] Additionally, in a similar situation, if a dispute arises where a host-state’s IIA contains no reference to FET, only specific prohibited acts, plus a MFN provision, if the host-state has entered into another IIA with a FET provision then the more favourable FET provision will be incorporated into the treaty involved in the investment dispute.[16]

The foundational minimum standard of treatment analysis approach taken by investment arbitrators adopts a principle which protects both individuals and foreign corporations and goes beyond protection of tangible property against physical destruction to the protection of acquired rights against government interference. States may still regulate because this right is not absolute, but the minimum standard is not frozen or fixed in time, it can and will develop and evolve.[17] 

 

Interactions with Other Investment-Protection Standards

In many contractual clauses, fair and equitable treatment is combined with other investors’ rights. FET principles are also included within, or evaluated alongside almost all other standards of treatment, including: national treatment; most-favoured-nation treatment (MFN); arbitrary or discriminatory measures; full protection & security; expropriation; and umbrella clauses. [18] Overall, three considerations appear to be of particular importance to tribunals’ analyses: (1) the regulatory framework of foreign investments; (2) the active promotion of foreign investment by the host country; and (3) the economic factors in the prospective host country.[19]

The global capitalist community presents the ideology that IIAs possess a twofold objective: first, there is the aspect of protecting foreign investment against risks resulting from the mere fact of being a foreigner, and from the structurally inferior position of private individuals in relation to a state’s power to nationalize assets. Second, investment agreements comprise the aspect of creating a friendly investment climate in order to encourage the flow of private capital which is recognized by host-states as a powerful tool that may further domestic development.[20]

The additional powers offered by the addition of ‘full protection and security’ obligations to the FET principle in IIAs produces host-state obligations to take active measures to fully or constantly protect investments. This is not an absolute right, nor is it applicable to the process of decision making chosen by the host-state, only applicable to failures to protect property by exercising due-diligence.[21] The obligations to assure FET, full protection and security, and the provisions relating to expropriation are often identified as examples of absolute standards, however. These absolute obligations are generally designed to provide a basic safeguard upon which the investor may rely in any case. The term ‘absolute’, in contrast to ‘relative’, therefore implicates that the level of protection guaranteed by these obligations does not vary at all.[22]

Due to the lack of specificity in the FET principle, as well as the lack of binding precedence in international investment disputes, it has functioned as a gap-filler for tribunals.[23] This gap-filling function is based on the assumption that the other investment treaty obligations are more-specific and more-favourable to foreign investors. FET is deemed ‘residuary in the sense that it governs only where no other treaty provisions are specifically on point.[24] Fair and equitable treatment is deeply related to the concept of equity and certain principles of international law. Arguments derived from these ideas are employed to justify particular decisions on the vague obligation of fair and equitable treatment.[25]

FET has been described as an ‘overriding obligation’ which is likely to be almost sufficient to cover all conceivable cases, and other provisions of the agreements affording substantive protection are examples of this overriding duty. The interrelatedness of standards of treatment causes tribunals to rely on a similar justificatory reasoning in the application of all of these obligations. [26]

A Right to Foreign Investment?

It is not only the textual precision of a rule that counts, but also its ability to achieve “just results. The flexibility of a norm is highly important in international investment law, however, “the power of a court to do justice depends . . . on the persuasiveness of the judges’ discourse, persuasive in the sense that it reflects not their own, but society’s value preferences.”[27]

Unfortunately, the importance of flexibility in investment arbitration is becoming less supported due to a constitutional-like entrenchment of the minimum protections offered to foreign capitalists. A basic premise of constitutionalist thinking in international law emerges from the perception that international law is increasingly displacing traditional paradigms of power and reciprocity by a global common interest and common objectives or values. [28] The lack of appellate review in international investment tribunals combined with their ability to make decisions which may overturn host-states’ domestic judicial awards, makes the emerging right to foreign investment a child of the one-sided protections offered by the FET principle.

Commonalities in constitutionalist arguments underlying the process of reasoning for different investment treaty provisions include the use of meta-norms (the expression of fundamental values of a legal system), infusing arguments with a basic sense of meaning and objectivity, as well as an application of doctrines of rationality and proportionality (commonly included in constitutional claims). Tribunals relying on an invocation of reasonableness and proportionality arguments inherently adopt the assumptions that: any state measure affecting an investment is built upon a reasonable and traceable rationale; the measure strains the investment not more than necessary; and the interests of the state and the foreign investor must be weighed against each other.

Tribunals will acknowledge the existence of rational objectives a state action may pursue; yet they usually do not explain why certain questions arising in a dispute are scrutinized more strictly than others. Many issues relating to FET will continue to emerge, and may be interpreted as signs towards a global-consensus with regard to the treatment of foreign investors.[29]

The United Nations Conference on Trade and Development (UNCTAD) has produced a synthesis of categories of requirements under the FET principle:[30]

  • Prohibition of manifest arbitrariness in decision-making, that is measures taken purely on the basis or prejudice or bias without a legitimate purpose or explanation;
  • Prohibition on the denial of justice and disregard of the fundamental principles of due process;
  • Prohibition of targeted discrimination on manifestly wrong grounds, such as gender, race, or religious belief;
  • Prohibition on abusive treatment of investors, including coercion, duress, or harassment; and
  • Protection of the legitimate expectations of investors arising from a governments specific representations or investment-inducing measures, although balanced with the host-state’s right to regulate in the public interest.

This serves as an example of the growing entrenchment of international investment law, in that the evolution of protections to foreign investors has produced a group of prohibited state-acts which may be justified in the public interest – quite similar to the Canadian constitution and its Charter of Rights and Freedoms which may be infringed and subsequently justified by state acts which pass a section one ‘Oakes’ test.

Impacts of the Principle of Fair and Equitable Treatment

The increasing levels of protection which may be offered to investors using the FET principle include:

  • Minimum procedural and substantive standards under customary international law;
  • Host-state obligations to reform domestic legislation to facilitate a capitalist-friendly investment market, including full-compensation for property rights;
  • Freezing of effective legislative options for host-states that would affect investments’ legal and fiscal interests (through stabilization or economic-equilibrium clauses); or
  • Additional combinations of contractual obligations included in IIAs or private-contract provisions (E.g. “Full Protection and Security”).

Sovereignty

Economic independence is a fundamental characteristic of sovereignty, therefore an attack on economic independence is tantamount to an attack on sovereignty.[31] The principle of fair and equitable treatment of foreign investment has been criticized for its negative impacts on host-state sovereignty by restricting the ability of governments to rapidly adapt to changing social climates. While tribunals have offered insight into the value of state-sovereignty, if rights are conceded in the name of public policy they are ultimately converted into damages relative to the value of the portion of covered investments affected. This results in current state governments being forced to purchase areas of sovereignty which were conceded by prior governments’ commitments to international investors.

Furthermore, “some commentators, and increasingly, investment tribunals have held that fair and equitable treatment imposes the following additional requirements: (1) An obligation of vigilance and protection (that is, an obligation to exercise due diligence in protecting foreign investments); (2) an obligation of transparency; (3)  an obligation of good faith, which includes an obligation to protect the basic expectations of investors created by the treaty; and (4)  an obligation to respect “autonomous fairness elements,” which seems to include fairness obligations beyond those required by international law and that are generally recognized in the legal systems of states with well-developed legal systems. Concerns about democracy arise primarily in regard to criterion three, the requirement to protect the basic expectations of investors.”[32]

It cannot be emphasized enough that IIAs impose a vast amount of restrictions on the sovereignty of host-states, and that the examples explored here are only derived from a single principle. These restrictions, however, are a necessity for capitalist economic growth due to the fundamental value produced by the safety of expected profit making abilities.

Legitimate Expectations

The FET principle often requires the protection of the investors’ legitimate expectations. This protection covers the promises made to, and relied upon by, foreign investors. Tribunals have also found that the protection of these expectations is closely intertwined with the perception of stability and consistency in the legal framework of the host-state.

Investors’ legitimate expectations require host-states to provide a stable and predictable investment environment. Inducements not to be disturbed even if the host-state act is in good-faith. Must include an expectation of the risks of regulatory change over time, as well as the political, socioeconomic, cultural and historical conditions prevailing in the host-state.[33]

A breach may be produced out of specific acts of the host-state in relation to the investor (e.g. contractual commitments). Investor(s) behaviours may also be relevant to determining the investor’s legitimate expectations (e.g. fraud), and tribunals must take into account the host-state’s level of development.[34]

The minor protection offered to developing countries only protect nations from blatantly unreasonable investor behavours. However, obligations related to foreign investors’ profits which were agreed to by prior governmental regimes are still guaranteed to produce returns on invested capital.

Transparency and Procedural Fairness

International investment tribunals have historically dealt with the aspect of fair and equitable treatment mostly under the categories of due process or denial of justice. The FET principle therefore provides that judicial and administrative procedures are shaped and exercised in a way that offers a platform for investors to argue for their rights and interests.

Investment tribunals have also identified a lack of transparency as a possible ground for liability of the host state. Transparency requirements set minimum standards for host-states’ investment-related legal frameworks and procedures, and require them to be readily apparent for individual investors.

Overall, the FET principle possesses an ever-broadening scope of power to foreign investors. TNCs and home-states have utilized FET to ensure that access to potentially “lost” profits are available through legally-enforceable methods which are then forced to consider and weigh the global-capitalist need for profits against the needs for host-states’ domestic legal reform.

The FET Principle & The Right to Water 

The right to water is found in several international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of all forms of Discrimination Against Women. Pursuant to the right to water, everyone is entitled to quality water that is both available and accessible. Water providers are accordingly required to provide a system of water supply and management that provides ‘equality of opportunity for people to enjoy the right to water.’”[35]

Within the history of international investment arbitration, human rights issues have intersected with the FET principle in the majority of case issues, including: host-states’ labour conditions; the environment; the rights of Indigenous peoples; public health; sustainable development; and the right to water. International investment law, as well as international human rights law, are both rapidly-evolving and highly-technical sectors, which makes it difficult for international investment tribunals to balance these sectors’ competing interests.

In an ICSID case, Urbaser, [36] the tribunal stated “Whereas the state has a duty to provide, the “human right to water . . . does not contain an obligation for performance on the part of any company providing the contractually required service”. [37] This statement may argue that the tribunal considered that human rights law imposes a duty on corporations not to interfere with the right to water, but no corresponding obligations to fulfill or protect this right. Future tribunals could interpret this decision to allow that corporate profits on water are ensured as long as their operations do not directly deprive an existent right to water.

In the Vivendi v. Argentina[38] case, an analysis by Graham Mayeda stated that “The tribunal in Vivendi III also found a breach of the principle of fair and equitable treatment on the basis that Tucumán’s authorities actively sought to undermine the concession in order to undo the privatization of the water utility or to force CAA to renegotiate a lower tariff. In the words of the tribunal: Under the fair and equitable standard, there is no doubt about a government’s obligation not to disparage and undercut a concession (a “do no harm” standard) that has properly been granted, albeit by a predecessor government, based on falsities and motivated by a desire to rescind or force a renegotiation. And that is exactly what happened in Tucumán. This amounts to stating that a government’s attempt to change its policy concerning a water utility will violate the principle of fair and equitable treatment and constitute failure to provide full protection and security if it is ‘politically motivated’.”[39]

Furthermore, in Vivendi, the additional provisions of protection and full security “cannot be interpreted to mean only physical security, as Argentina had argued. Rather, this obligation must be understood to require the host state to ensure that the investment is not withdrawn or devalued either by the host state’s amendment of its laws or by actions of its administrative bodies.”[40] In this example, a host-state resorted to arguments that would only limit its protection obligations to include their use of police powers to physically protect foreign investments within their borders, however the tribunal expanded their interpretation to oblige host-state conduct which would uphold those same investments.

The Use of FET by Host-States’ in Human Rights-based Arguments

Host-states are often capital importers by nature, therefore their regulatory actions which change the investment atmosphere may only be argued as either legally justified as necessary, or reactionary to an investors’ human rights violation. The first situation of a violation is one in which the host-state argues that its behaviour, which is believed to have breached the FET standard, was necessary in order to respect an international human rights obligation. In other words, the violation of the FET obligation is justified, because otherwise the state would have violated one of its human rights obligations. For example, in Vivendi the motivation of government officials to reverse the privatization of water (or impose tariffs) was considered to be ‘political’, and the means used were characterized generally by the tribunal as violations of the rule of law and due process.[41] This is a situation where two obligations of the state are in conflict, and the commitment to a corporate contractual agreement outweighed the public’s interest in access to affordable water.

In the second situation, the state justifies its violation of FET by alleging that the investor has violated a human right – therefore, in order to put an end to this human rights violation, the state had to take a measure (or act in a way) which resulted in the violation of the FET principle. In this second scenario, the investor contributes directly to the violation of FET because of their own behaviour.[42] This scenario is reflected in Urbaser where a host-state alleged interference was due to a perception of failure on behalf of the corporation to proactively enforce water rights.

Tudor elaborates on three additional approaches adopted by international investment tribunals that had to make a decision on a claim (or argument) based on non-investment treaty obligations, such as human rights:[43]

  • A tribunal denied the relevance of a non-investment treaty obligation. A tribunal decided that ‘the fact that the expropriation was made with the aim of protecting the environment does not have any impact on the legal character of expropriation or the amount of compensation’.
  • A tribunal affirmed the relevance of the non-investment treaty obligations in abstracto, but did not recognize it in concreto. Without outright rejecting the human rights argument, a tribunal ruled that the respondent did not develop this argument well enough. Also, a tribunal examined the claim of a state that it took a measure in order to protect public health, and ruled that ‘governments have to be vigilant and protect the public health of citizens but the statements and actions of the provincial authorities contributed to the crisis rather than assisting in solving it’.
  • A tribunal recognized the non-investment treaty argument and took it into account in the calculation of compensation. In one case, the compensation awarded to the investor, by virtue of a FET breach by the host-state, was diminished by 50% because the investor’s actions increased the transactions’ risks and, as experienced businessmen, ‘claimants should bear the consequence of their own actions’.

The decisions of investment tribunals to only consider human rights impacts in relation to compensation for damages, or not at all, diminishes the societal value and importance of human rights law. “To sum up the possible impact human rights norms may have on a FET claim, it appears that, despite the fact that arbitral tribunals may declare themselves competent to rule over a customary Human Rights claim, such a claim should under no circumstance have an influence over the decision of the arbitrators on the merits of the case.”[44] This leaves potential for decisions where tribunals only recognize host-states’ human rights grievances in a fleeting manner, while helping to ensure the profitability of transnational corporations.

The FET obligation, which is generally criticized for resulting in an unbalanced relationship between the investor and the host state, can also be argued as a standard that brings a measure of equity to this relationship. FET principles put foreign investors and host-states’ governments into a relationship based in international law standards intended to create a stable and predictable framework for investment. However, an equitable relationship also causes the very unequal societal values of human rights and foreign economic prosperity to be evaluated on equal footing. The introduction of human rights-based arguments in a FET claim is forced to be considered by the tribunal at the stage of calculating the compensation, not at the stage of establishing liability. If a human rights claim is included in the discussion of compensation only, the liability of the state on the basis of FET is established solely on the analysis of its behaviour in relation to the financial returns of home-state capitalists.

The limitation placed on arguments based on human rights violations by an investor may only reduce the compensation to be paid by the host-state, yet the breach of the FET obligation by the state remains. The proportional-reduction in damages method ties the valuation of an award to the investor’s violation of human rights. It may also result in a longer, more complex (and expensive) procedure.[45] Often arbitrators who lack human rights experience may even dismiss claims due to incomplete evidence and their inability to draw proper inferences from the information placed before them. Additionally, even if a corporate-violation of human rights is recognized, this method does nothing to ensure rectification of damages. Currently, BITs do not address these issues directly, but given the increasing frequency with which human rights discussions appear in investment cases, it is likely that states will take steps towards rectification.

 

Conclusion

“Developing countries have come to grief as a result of the wide interpretation given to the standard of fair and equitable treatment by recent arbitral panels.”[46] This is in large part due to the asymmetry of protections offered under IIAs which disproportionately benefit foreign investors from a home-state to the net-detriment of host-states and their nationals.

Due to the vast intersectionality of the principle of fair and equitable treatment within international investment law, it has had varying impacts on human rights issues. The continuous interpretation and re-interpretation of the relationships between these areas of law produces a higher flexibility in tribunal decision-making. This issue is compounded when arbitrators lack experience in human rights litigation, and furthermore when arbitrators are unsure as to which stage of their analysis these competing interests should be analyzed and weighed. For the right to water, this fundamental human need is only considered by international investment tribunals when considering the justifiability of a state-action or the level of compensations to be owed to foreign investors. A host-state national’s right to water, a necessity for basic survival, will never be benefitted through disputes of the nature which they decide upon.

The constitutionalizing of investor protections under the principle of fair and equitable treatment has secured an ever-growing minimum level of economic safety to foreign investors over those state-nationals who may likely need it more. Research into the legal arguments made in international investment arbitration cases involving IIAs, and the methods in which transnational corporations attempt to use and develop the jurisprudence to add to the scope of generally-established rights available to international investors, clearly demonstrates the necessity for a globally coordinated re-thinking of international investment relationships.

The FET principle has had a significant influence in almost every international investment dispute around the globe. Unfortunately, the main opportunity to obtain justice for human rights infringements, in this context, is in a reduction in compensation for lost profits incurred by host-states’ necessary actions taken to comply with human rights obligations to their own nationals. The scope and use of the FET principle has revealed an entrenchment of the global-capitalist interests of transnational corporations. This has produced guarantees for a legally binding platform for the weighing of human rights against financial investment interests, which may prove risky within current developments in the geopolitical atmosphere.

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Compañía de Aguas del Aconquija & Vivendi Universal v Republic of Argentina, ICSID Case No. ARB/97/3, online: <iisd.org/itn/2018/10/18/vivendi-v-argentina>.

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Waincymer, Jeff. “Balancing Property Rights and Human Rights in Expropriation” (Oxford University Press 2009).

Yeager, Matthew G. and Jade L. Smith. “Global Pollution, Multinational Oil Companies and State Power: The Case of Yaiguaje v. Chevron Corporation” (2017), Environmental Crime in Latin America, 117-140, online: <link.springer.com/chapter/10.1057/978-1-137-55705-6_6>.

Zeyl, Trevor. “Charting the Wrong Course: The Doctrine of Legitimate Expectations in Investment Treaty Law” (2011) 49 Alta L Rev 203 – 235.

[1] Roland Kläger, ‘Fair and Equitable Treatment’ in International Investment Law (New York: Cambridge University Press, 2011), at 1.

[2] Paul Michael Blyschak, “State Consent, Investor Interests and the Future of Investment Arbitration: Reanalyzing the Jurisdiction of Investor-State Tribunals in Hard Cases” (2009) 9 Asper Rev Int’l Bus Trade L 99, at 105.

[3] CED, 4th ed West 35, ss 187: International Economic Law.

[4] J Anthony Vanduzer, Penelope Simons & Graham Mayeda, “Integrating Sustainable Development into International Investment Agreements: A Guide for Developing Country Negotiators” (London: Commonwealth Secretariat, 2013), at 150.

[5] CED, supra note 3.

[6] Lone Wandahl Mouyal, “International Investment Law and the Right to Regulate: A Human Rights Perspective” (New York: Routledge, 2016), at 40.

[7] Kläger, supra note 1 at 319.

[8] Vanduzer, supra note 4 at 138.

[9] Kläger, supra note 1 at 278.

[10] Mouyal, supra note 6 at 41.

[11] Ibid at 41.

[12] CED, supra note 3.

[13] Vanduzer, supra note 4 at 147.

[14] Ibid at 148.

[15] Ibid at 147.

[16] Ibid at 149.

[17] Mouyal, supra note 6 at 47.

[18] Kläger, supra note 1 at 16.

[19] Ibid at 31.

[20] Ibid at 44.

[21] Mouyal, supra note 6 at 41.

[22] Kläger supra note 1 at 304.

[23] Vanduzer, supra note 4 at 139.

[24] Kläger supra note 1 at 306.

[25] Ibid at 307.

[26] Ibid at 308.

[27] Ibid at 143.

[28] Ibid at 312.

[29] Ibid at 319.

[30] Vanduzer, supra note 4 at 144.

[31] CED, supra note 3.

[32] Graham Mayeda, “International Law and Democratic Considerations Investing in Development: The Role of Democracy and Accountability in International Investment Law” (2009) 46 Alta L Rev 1009, at 1022.

[33] Vanduzer, supra note 4 at 145.

[34] Vanduzer, supra note 4 at 146.

[35] Barnali Choudhury, “International Law and Democratic Considerations: Democratic Implications Arising from the Intersection of Investment Arbitration and Human Rights” (2009) 46 Alta L Rev 983, at 987.

[36] Urbaser S.A. & Consorcio De Aguas Bilbao Bizkaia v The Argentine Republic, ICSID Case No. ARB/07/26, online: <icsid.worldbank.org/en>.

[37] David Attanasio &Tatiana Sainati, “International Decisions” (2017) 111:3 American J Int’l L 744.

[38] Compañía de Aguas del Aconquija & Vivendi Universal v Republic of Argentina, ICSID Case No. ARB/97/3, online: <iisd.org/itn/2018/10/18/vivendi-v-argentina>. [Vivendi]

[39] Graham Mayeda, “International Investment Agreements Between Developed and Developing Countries: Dancing with the Devil? Case Comment on the Vivendi, Sempra and Enron Awards” (2008) 4 McGill JSDLP 189 at 204.

[40] Ibid.

[41] Ibid at 194.

[42] Ioana Knoll-Tudor, The Fair and Equitable Treatment Standard and Human Rights Norms, (Oxford University Press, 2009), at 339.

[43] Ibid at 339-340.

[44] Ibid at 342.

[45] Ibid at 342-343.

[46] Mayeda, Graham. “International Law and Democratic Considerations Investing in Development: The Role of Democracy and Accountability in International Investment Law” (2009) 46 Alta L Rev 1009, at 1022.

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Settler Colonialism_______________________________________________________________

Capitalist Imperialism____________________________________________________________

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