Fair and Equitable Treatment(F&ET) violation of BIT/FTA accounts for a great portion. Therefore F&ET article is called the universal provision of ISD. There are several reasons. One is that F&ET violation is the cause for claim without exception if da ...
Fair and Equitable Treatment(F&ET) violation of BIT/FTA accounts for a great portion. Therefore F&ET article is called the universal provision of ISD. There are several reasons. One is that F&ET violation is the cause for claim without exception if damage is occurred but there is no adjustable claim article. It is very advantageous for petitioners because the concept of F&TA is ambiguous and the application scope is being extended. Additionally, ISD is premised on the action of host country. Any policy power performed during the investment process can be included in the scope of F&ET. At last, when the importance of violation is unclear in ISD arbitration, it focuses on the protection for investor/investment which is the purpose of BIT rather than control for public purpose in the host country.
There existed the F&ET article of BIT stating that "Investments made by investors of each Contracting party shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party" It has additional regulation as follows "Neither Contracting Party shall in any way impair by arbitrary or discriminatory measures the operation, management, maintenance, use, enjoyments or disposal of investments in its territory by investors of the other Contracting Party."
NAFTA revised this article. The article 1105 is about the Minimum Standard of Treatment, specifying "Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security." In other words, NAFTA added ①the 'MST',②'by the international law' and ③ deleted the line 'prohibit the arbitrary and discriminative treatment. These articles has been given various interpretations. First discussion is measured against whether the International law or Customary International Investment. Second, it depends on its relationship between the minimum standard of law and Fair and Equitable Treatment. Third, there is a debate about the constituents of Fair and Equitable Treatment, which is related to obligation. ISD Award of NAFTA gave different conclusions of the F&ET requirement under Article 1105 of the agreement.
Following this, the NAFTA Free Trade Commission issued a binding note of Interpretation of Certain Chapter 11 Provisions. In this note, NAFTA regulates MST dealing with the treatment for foreign investors. The concepts of “fair and equitable treatment” and “full protection and security” do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights.
This confirms that MST, F&ET and FP & S are the same. The content of this notebook are reflected in the article of BIT model of America in 2004. And it was regulated article 1105 in FTA between S. Korea and America.
As for the treatment of foreigners in the Customary International Investment of NAFTA, Arbitration Tribunal is done by egregious, outrageous, shocking and otherwise extraordinary. This is an established criteria of Threshold in the Neer case which is an arbitration case of The General Claims Commission between US and Mexico in 1926.
Arbitration judgment tends to review the substantial contents of F&ET. The reason is that F&ET of BIT/FTA has various regulation, but the most important distinction is made between F&ET in the type of NAFTA and article F&ET in the general BIT. The study report analyzes try to make various analyses of components of F&ET found in the arbitration judgment case. However, there is no different in the components of F&ET in the arbitration judgement. This is because the components are complexly connected in a complex way.
The common components of F&ET include Obligation of vigilance and protection, Due process/ denial of justice/arbitrariness, Transparency, The good faith principle as a combination of elements: respect of basic expectations, transparency, lack of arbitrariness. First, the duty of caution and protection is related to the one which the recipient country should share to enjoy the full protection and security. Second is the duty of transparency. Transparency is a result of legislative, judicial, and administrative action which is related to the expected benefit of rationality.
Third is the rationally expected benefit. The main causes for rational expectation include contractual arrangements, informal presentations, general regulatory framework. Fourth is the prohibition of noncrimination & arbitrariness. This will be shown through the form of being ignorant of legal control. Finally, the jurisdiction denial is the most typical component of F&ET.
If we take into consideration only the effects caused through the ISD arbitration, it is criticized that the police power for public interest would be violated. A general tendency is to consider the balance between the purpose and effect of regulations. That is, the position should be made by applying the propositional ratio well-recognized through domestic and internal law. This is the general tendency of the arbitration judgement of ISD and lead the directionality of foreign investment policy.
The articles of F&ET in BIT of our country has the detailed form mentioned above. The FTA between Kora and America regulates the detailed F&ET which is the same as the minimum standard treatment. The prolem is whether F&ET has its self-contained indepence. If it is independent, it is possibly suggested that the components of F&ET would be created which is different from the minimum standard treatment of Customary International Investment.
At the moment, the situation refuses the judgement case of the arbitration of NAFTA. it would be lack of the theoretical development to introduce the new components and duties. It can be said that even though the detailed of F&ET in BIT has its own independence, it can be denied by the articles of MFN. In this case, the Article 1105 of the Korea and America FTA would be claimed. There exists a case of claiming the F&ET in a different BIT citing MFN from the ISD arbitration case. it can be said that the components and duties of F&ET in the NAFTA arbitration are standardized becoming customary international investment. Recently, it is noticed that the transformed F&EF in BIT appears. Both BIT(Korea- Republic of Rwanda BIT) and BIT(Korea- Oriental Republic of Uruguay BIT) are the direct reflections of Article 1105 of the Korea-America FTA.
Through the review of F&ET, the first review of ISD case in our country will be made in the current paper. Lone Star present the Intent to File Arbitration Claim Regarding Korea Exchange Bank and Other Investments to our government. Lone Star violated F&EF because the Financial Supervisory has refused or delayed the sale approval by 2012 since it bought the Foreign Exchange Bank in 2003. The actions taken by the government were illogical and therefore the approval was delayed mainly due to the political reasons without any legal adequacy. It was insisted that it gave a hard time to investigators through examinations and inspections.
First, the issue is whether stock-in-trade manipulation or industrial funds can be the rational reason to delay the sale approval. Second is that the delay or refusal of sale approval caused by the procedural issue is arbitrary or discriminal. Third, the following will be the main issues: to provide enough information of administrative procedure through the sale process and to go through the proper proceedings such as negotiation. Fourth, governmental intervention took place by examining and inspecting the inspectors. Fifth, if administrative measures were taken to put some pressure on the buyers to block selling, there would be a possibility of violating F&ET out of malice. In addition, there exists the issue of jurisdiction refusal if court judgement were long enough unlike the similar domestic cases.