Please address ONE of the following two topics in no more than 1,500 words.
- The government of Jona, a fictional industrialised, capital-exporting country, has concluded bilateral investment treaties (BITs) with 98 states. All of these BITs contain a provision requiring state parties to accord investors fair and equitable treatment (FET), typically along the following lines:
“All investments made by investors of one Contracting Party shall enjoy a fair and equitable treatment in the territory of the other Contracting Party.”
In the wake of recent elections, the new government of Jona is under internal pressure to revisit its investment policy. A strong current of opinion is of the view that Jona ought to no longer conclude BITs. Some other voices suggest that, if at all, BITs should no longer contain FET clauses, as these are considered to be ‘open-ended provisions’ that will enable ‘biased tribunals to stretch their meaning to our detriment’.
You are a legal advisor working in the Ministry of the Economy of Jona. Your Minister is keen to ensure that some form of FET protection is preserved in future BITs and requests you to assist her in convincing investment critics that some form of FET is necessary.
To that end, she asks you to prepare a memorandum that lays out how future FET clauses can be drafted in such a manner as to strike a proper balance between investor rights and state interests.
Please draft the memorandum.
- “Diplomatic Protection remains the most attractive means for investors seeking investment protection in modern international investment law”.
This summative essay is due on 16 February 2022 (4 pm), and will account for 25% of the final mark for the course.