Fair and equitable treatment in international trade and investment law, 1919-1956

This thesis traces the development of the ‘fair and equitable treatment’ concept in international trade law, first, following its appearance after World War I as a principle for inter-State trade relations, and then, after World War II, its fertilization into international investment law and policy. The thesis is based on extensive research into archived primary materials from 1918 to 1961. It focuses on three ‘moments’ in time: i) the League of Nations’ reliance on equitable treatment to address indirect forms of trade protectionism in the 1930s; ii) the use of the equitable treatment concept in the negotiation of the international investment provisions for the Charter for the post-war International Trade Organization; and iii) the United States Government’s use of the fair and equitable treatment concept to protect US investments in its post-war Friendship, Commerce, and Navigation (FCN) treaties. The thesis argues that certain roles of equitable treatment in the trade context were carried over into subsequent bilateral and multilateral trade treaty practice. These roles in turn influenced the creation of the post-war international investment commitments. The thesis advances five overall findings to clarify what those roles were, and explains how these roles contributed to the formation of the ‘hard’ fair and equitable treatment investment treaty commitment, as contained in the majority of contemporary international investment agreements. In addition, each chapter presents several findings applicable to the ‘moment’ researched, offering explanation as to how each ‘moment’ contributed to the development of fair and equitable treatment or equitable treatment at the time.