Chapter 8 concludes the analysis of the most important substantive investment treaty clauses by examining the fair and equitable treatment standard. It argues that armed conflict does not put into question certain guarantees of fair decision-making and adjudication, whereas it proposes a balanced relativisation of the protection of investor expectations in the context of armed conflict. The determination of whether treatment is fair and equitable can only be made in the light of the individual circumstances of conflict. When balancing the interests of investors in a stable regulatory framework against the state’s regulatory interests, the urgency and severity of these public interests in armed conflict should be accorded particular weight. Under the proposed reading, the fair and equitable treatment standard is flexible enough to consider the circumstances of an armed conflict in a balanced and nuanced way. Well aware of existing controversies and opposing lines of jurisprudence, the chapter suggests ways to embrace the standard’s flexible nature and counteract tendencies in arbitral practice that arguably overemphasise investor interests.

Of all the common law jurisdictions, New Zealand’s administrative law has probably stayed closest to that of England. Even so, notable differences have developed. The most distinctive part of the local law relates to the Treaty of Waitangi, and the extent to which it constrains the exercise of public powers. On issues common to both jurisdictions, there is a mix of more interventionist or liberal approaches and more conservative ones. A more interventionist approach is notable as regards the effect given to unincorporated international treaties. A more conservative approach can be observed to the human rights legislation and also still, at least to some extent, to the substantive grounds of judicial review (heightened scrutiny unreasonableness, substantive legitimate expectations and mistake of fact). Turning from substance to procedure, access to judicial review is more liberal in several respects. Finally, a notable feature of the New Zealand approach across all aspects of administrative law is a marked resistance to rigid doctrinal categories. Reflecting on these differences, the conservative aspects can be seen in the context of the still fairly unqualified adherence to Parliamentary sovereignty, in the absence of a supra-national source of law such as the ECHR or the EU. The other aspects may be seen as reflecting the national identity as a small polity with informal channels of communication, given to pragmatic solutions, and keen to be seen as a good international citizen.