FAIR AND EQUITABLE TREATMENT STANDARD (“FET”)
Parties’ Submissions
11.1 The Claimant submitted vigorously that there had been
breaches of the FET standard as set out in Article 2(3) of
the 2002 Treaty. The Claimant did not in final submissions
pursue the claim that there was a requirement for FET
under the 1961 Treaty. Under the Tribunal’s decision on
jurisdiction ratione temporis, claims under the 2002 Treaty
must be primarily focussed on post-October 2004 conduct.
47
Sempra Energy International v Argentina ICSID Case No. ARB/02/16, 28 September
2007.
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11.2 The Tribunal does not need to consider any argument based
on a consideration of Article 1(2) of the 1961 Treaty, taken
together with Article VII(1) of the Thailand/Netherlands
Treaty, Article 5(1) of the Thailand/United Kingdom Treaty
and Article 4(1) of the Thailand/China Treaty which
incorporated FET provisions. The Claimant did not advance
any such argument strongly in its post-hearing submissions.
The Tribunal is of the view that nothing in the 1961 Treaty
addressed breaches of FET standards. As noted earlier, the
1961 Treaty does not provide for FET of investors and/or
investments. More importantly, none of the three treaties
with other countries contains an investor-state arbitration
provision. It is hard to see in these circumstances how the
provisions of these treaties have any relevance to the
present claim.
11.3 The Claimant asserted, in general, that the Respondent had
breached the FET standard because it acted in an arbitrary
and unconscionable manner towards the Claimant and its
investment over a long period of time, producing the result
that the investment never delivered any return to the
Claimant right up to the time when the Claimant sold its
shares. Accordingly, the Claimant’s legitimate expectations,
both at the time of making its investment in DMT and after
the conclusion of MoA2, were frustrated.
11.4 The expectations were categorised thus:
(a) Principle of Reasonable Return on Investment, which
in turn was determined by
(b) Feasibility of the Investment in respect of:
(i) its location;
(ii) its relationship to VRR;
(iii) the surrounding network;
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11.5 Numerous cases were cited by the parties concerning the
criteria by which breaches of FET, including breach of
legitimate expectation, should be assessed. The following
summary of FET, in the decision in Biwater Gauff v
Tanzania48 (which the Tribunal adopts as relevant to the
present case) includes the protection of legitimate
expectations as a specific component of FET:
“Specific Components of the Standard: The general
standard of “fair and equitable treatment” as set out
above comprises a number of different components,
which have been elaborated and developed in previous
arbitrations in response to specific fact situations.
These have been the subject of detailed consideration
in the parties’ submissions. In so far as they are
relevant to the dispute here, these separate
components may be distilled as follows:
- Protection of legitimate expectations: the purpose
of fair and equitable treatment standard is to
provide to international investments treatment that
does not affect the basic expectations that were
taken into account by the foreign investor to make
the investment, as long as these expectations are
reasonable and legitimate and have been relied
upon by the investor to make the investment.
- Good faith: the standard includes the general
principle recognised in international law that the
contracting parties must act in good faith, although
bad faith on the part of the state is not required for
its violation.
- Transparency, consistency, non-discrimination: the
standard also implies that the conduct of the State
must be transparent, consistent and nondiscriminatory,
that is, not based on unjustifiable
distinctions or arbitrary.”
11.6 The Tecmed decision referred to earlier, required that the
State use the legal instruments governing the actions of the
investor in conformity with the formulation “usually applied
to such instruments”. Clearly, the Respondent was required
to act in accordance with the terms of the Concession
Agreement. As noted earlier, clause 25 regarding toll
48
Biwater Gauff v Tanzania, ICSID Case No. ARB/05/22, Decision of 24 July 2008, at para
602.
124
increases, is less than helpful from the Claimant’s point of
view. Yet, the Respondent seems to have accepted
seriously obligations - whatever they may have been under
that clause – to implement toll rises. From this perspective,
it may not matter that eventual acceptance of those
obligations may have occurred with less than optimal
diligence or speed.
11.7 The Respondent, whilst conceding that FET has been
interpreted by a number of tribunals as including the right
to protection of legitimate expectations, submitted that “the
obligations of the host state towards foreign investors
derive from the terms of the applicable investment treaty
and not from any set of expectations that the investors may
have or claim to have”. The Tribunal considers this as a
rather circular and unacceptable argument. The Treaty
promised FET and “legitimate expectations” come within
FET’s parameters.
11.8 The Respondent submitted that, if the Claimant’s
expectations are to be protected, then the whole of the
Claimant’s expectations at the time the investment was
made, modified over time, must be taken into account. In
particular, MoA2 modified the Claimant’s expectations
markedly.
11.9 Moreover, the Respondent submitted, the Claimant’s
legitimate expectations as an investor were affected by the
following factors:
(a) The Claimant had only a minority stake in DMT.
(b) The Claimant had no special rights of control over
DMT under the Shareholder’s Agreement.
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(c) The value of the investment was imperfectly
protected under the Concession Agreement by
clauses 25 and 31.
(d) The Claimant made a profit on the contracts to build
the Tollway and the Northern Extension.
11.10 Professor Crawford argued that the reasonable expectations
of the investor, consistent with contractual and other
proprietary arrangements, have to be considered over and
above domestic law manifestations, because of the principle
of parallel protection of rights under the Treaty. He
submitted that the various dicta (such as those quoted
above) set out a list of administrative practices to which an
investor can legitimately expect a host state to conform.
11.11 The legitimate expectations doctrine has been applied to
protect the substantive expectations of investors where
particular promises have been made – Eureko v Poland (cit
supra) and CMS v Argentina49
. As was noted in an article by
Steven Fietta50
, “…The question of whether or not there has
been a violation of the standard will turn on what legitimate
expectations the investor had in light of the specific
assurances given by the relevant state authorities against
the background of the domestic legal framework that was to
govern the investment”.
11.12 The Respondent referred to Professor Crawford’s 2007
Freshfields Lecture51 which emphasised “In particular, the
doctrine of legitimate expectations should not be used as a
substitute for the actual arrangements agreed between the
49
CMS v Argentina ICSID Case No. ARB/01/8, Decision on Annulment of 25 September
2007.
50 Steven Fietta “Expropriation and the Fair and Equitable Standard: The Developing Role
of Investors Expectations in International Investment Arbitration” Journal of International
Investment Arbitration Vol. 23, No. 5 p 375 and p 388.
51 Prof James Crawford S.C. “Treaty and Contract in Investment Arbitration” (22nd
Freshfields Lecture) London, 29 November 2007.
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parties or as a supervening and overriding source of the
applicable law.”
11.13 The Respondent, accordingly, submitted that, whilst it had
made a number of specific representations to DMT in
relation to the Claimant’s investment which were
incorporated within the Concession Agreement as amended,
those undertakings were incapable of engendering
substantive legitimate expectations.