The fair and equitable standard of treatment in Latin American countries with emphasis in Colombia

Abstract. Achieving clarity in core provisions negotiated in international investment agreements entails rethinking Investor-State Dispute settlement. In Latin American countries, the trend is to include the fair and equitable treatment as part of the minimum standard of treatment, based on customary international law. Such a provision has been contested by developing countries until recent international multilateral bargaining processes. In fact, developing countries have come to realize that the fair and equitable treatment and the high threshold of responsibility framed in
customary international law can be viewed as an alternative means for governments to protect domestic regulations under international law. Although, there is still an indeterminacy about the scope of this concept, countries have attempted to focus on the type of evidence put forward by
foreign investors before international tribunals and, to reduce tribunals’ discretion. Even though some treaties like CETA, and models such as Colombia’s model on International Investment Agreements (IIAs), comprise fair and equitable treatment as independent provisions and have
included a list of types of conduct, the truth is that some conducts fall within the parameters required by the minimum standard of treatment. For Latin American countries, the creation of a regional center of investment disputes may provide for a more certain interpretation of the fair
and equitable treatment standard.

“Does a higher threshold of responsibility translate into greater possibilities for defending domestic regulatory measures? The fair and equitable standard of treatment in Latin American countries with emphasis in Colombia,” McGill Journal of Dispute Resolution, volume 6 (2019-2020) 5 p. 133-183.