The fair and equitable treatment standard in international investment law: The Mexican experience

The purpose of this thesis is to analyze the Mexican experience with respect to the application of one of the most controversial standards in international investment law: the obligation to provide a fair and equitable treatment (FET) to foreign investors. A hypothesis of this paper is that it is not appropriate to define a normative content of the FET standard by only discussing the host country measures taken, allegedly, against a foreign investor. Rather, in the analysis of different cases involving Mexico, the perceived conduct of the foreign investor could be used by the host country as a defense in allegations of FET violations. According with this thesis, this is the only approach that seeks to find a balance between the investors' rights and the legitimate domestic public policies of the host country.; This thesis - after discussing the historical, institutional, and doctrinal framework of the FET standard - analyzes the factual circumstances and legal allegations marshaled by the parties in those cases involving Mexico. In the NAFTA context, this paper highlights the differences in the construction of the FET standard made by the tribunals in the cases resolved before the Free Trade Commission issued the 2001 Notes of Interpretation, and the interpretation in those cases settled after these Notes were issued. Also, there is a remarkable difference in some aspects of the normative content of the standard in the cases settled in the framework of the Bilateral Investment Treaties.; In addition, this thesis concludes that the concept of FET as part of a minimum standard of treatment of customary international law is continuously evolving; that exhaustive jurisprudential analyses demonstrate that is possible to define a normative content of the FET standard. In any event, the threshold for finding a violation of any of the elements of this normative content remains high; and that the lack of an appellate review in investor---State disputes largely contributes to the lack of a clear understanding of the meaning of the FET standard.