A Fair and equitable treatment as an embodiment of justice

The following observations endeavour to discuss and evaluate the concept of fair and equitable treatment based on the supposition that fair and equitable treatment is often considered as an embodiment of justice. That is to say that the concept of fair and equitable treatment expresses ideas of justice and moral ethics and that, therefore, the application of the norm aims to establish a just relationship between the host state and the foreign investor. To this end, an attempt is made to disclose the interrelatedness of fair and equitable treatment and different concepts of justice, before turning more generally to the rise of the idea of justice in international law and providing a brief survey of selected theories of justice in international relations.

Connections between fair and equitable treatment and justice

A connection between fair and equitable treatment and justice emanates, at first, from the literal sense of the notions of ‘fair’ and ‘equitable’, which are frequently circumscribed by terms such as ‘impartial’, ‘just’, ‘free from bias or prejudice’ and ‘conformable to principles of justice and right’. Of course, such commonplaces are insufficient for the formulation of a doctrinal concept, but they do give an initial hint at the connectedness between fair and equitable treatment and justice. Due to the choice of treaty-makers in favour of such wording, it may be presumed that it was intended to relate fair and equitable treatment to ideas of justice in order to integrate these ideas into the investor–state relationship.