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Evolution or Devolution?

Evolution or Devolution? I. INTRODUCTION The principle of "fair and equitable treatment" is both a common concept found in many trade-related treaties and an equally misunderstood term that has plagued academics, governments and investors. The source of the misunderstandings of this amorphous concept stems primarily from the lack of definition ascribed to the fair and equitable treatment provisions in several trade treaties, most notably in the North American Free Trade Agreement (NArTA). This gap in treaty definitions has allowed investors and governments to take opposite stances in delineating the precise scope of the term, with governments arguing for a restrictive view of the term and investors shouting for an expansive view. The contrasting arguments put forth by governments and investors for the definition of fair and equitable treatment have been so consistently argued that they can, in fact, essentially be summarized in two words: evolution or devolution. Investors maintain that fair and equitable treatment is an evolving concept whose definition can expand and grow, while governments insist that it is a static concept which can only be defined by its historical meaning. The parties, however, do not dispute the basic understanding of fair and equitable treatment. Under this concept, it is http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Investment and Trade Brill

Evolution or Devolution?

Journal of World Investment and Trade , Volume 6 (2): 24 – Jan 1, 2005

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1660-7112
eISSN
2211-9000
DOI
10.1163/221190005X00091
Publisher site
See Article on Publisher Site

Abstract

I. INTRODUCTION The principle of "fair and equitable treatment" is both a common concept found in many trade-related treaties and an equally misunderstood term that has plagued academics, governments and investors. The source of the misunderstandings of this amorphous concept stems primarily from the lack of definition ascribed to the fair and equitable treatment provisions in several trade treaties, most notably in the North American Free Trade Agreement (NArTA). This gap in treaty definitions has allowed investors and governments to take opposite stances in delineating the precise scope of the term, with governments arguing for a restrictive view of the term and investors shouting for an expansive view. The contrasting arguments put forth by governments and investors for the definition of fair and equitable treatment have been so consistently argued that they can, in fact, essentially be summarized in two words: evolution or devolution. Investors maintain that fair and equitable treatment is an evolving concept whose definition can expand and grow, while governments insist that it is a static concept which can only be defined by its historical meaning. The parties, however, do not dispute the basic understanding of fair and equitable treatment. Under this concept, it is

Journal

Journal of World Investment and TradeBrill

Published: Jan 1, 2005

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