A UNIFIED THEORY OF FAIR AND EQUITABLE TREATMENT
The fair and equitable treatment standard soon found its way into codifications of investor rights. The 1959 Draft Con- vention on Investments Abroad, more commonly known as the Abs-Shawcross Convention, required at article 1 that “[e]achParty shall at all times ensure fair and equitable treatment tothe property of the nationals of other Parties.”
Article I(1) of the 1967 OECD Draft Convention on the Protection of For-eign Property was worded identically.
Meanwhile, in 1959, Germany concluded the first BIT, with Pakistan.
In the 1960s, other countries began to inaugu-rate their own BIT programs.
When Switzerland inauguratedits BIT program in 1961, it included the fair and equitabletreatment standard.
Soon, other countries included the stan-dard in their BITs.
The United States launched its programin 1977,
and every U.S. BIT has included the standard.
and Navigation, U.S.-Belg., Feb. 21, 1961, art. I, 14 U.S.T. 1284; Conventionof Establishment, U.S.-Fr., art. I, Nov. 25, 1959, 11 U.S.T. 2398; Treaty of Friendship, Commerce, and Navigation, U.S.-Neth., art. I(1) Mar. 27, 1956,8 U.S.T. 2043.5.Herman Abs & Lord Shawcross,
Draft Convention on Investments Abroad
, 9 J. P
. L. 116 (1960),
U.N. Conference on Trade andDev. (UNCTAD),
International Investment Instruments: A Compendium
,301,U.N. Doc. UNCTAD/DITE/2(Vol. 5) (2000).6.Organization for Economic Co-operation and Development (OECD), Draft Convention on the Protection of Foreign Property, Oct. 12,1967, 7 I.L.M. 117,119.7.Treaty for the Promotion and Protection of Investments, F.R.G.-Pak.,Nov. 25, 1959, 24 U.N.T.S. 1963.8.
Kenneth J. Vandevelde,
A Brief History of International Investment Agreements
, 12 U.C. D
L. & P
157, 169 (2005) (listing severalcountries that entered into BITs in the 1960s).9.Treaty Relating to the Protection and the Encouragement of Invest-ments of Capital, Switz.-Tunis., art. 1, Dec. 2, 1961, RO 1964 67,
Agreement Concerning the Encouragement of Capital In- vestment and the Protection of Property, Tunis.-Belg.-Lux. art. 1, Jul. 15,1964, 561 U.N.T.S. 297; Protocol on the Promotion of the Movement of Cap-ital and Investments, Iraq-Kuwait, art. 2, Oct. 25, 1964,
Kenneth J. Vandevelde,
The Bilateral Investment Treaty Program of the United States
, 21 C
L.J. 201, 209 (1988) (describing the develop-ment of the American BIT program).12.
Kenneth J. Vandevelde, U.S. I
329 (2009) (describing the fair and equitable treatment standard inarbitral practice).