The Havana Charter

The vast majority of the legal doctrine traces the origins of the fair and equitable treatment standard back to the 1948 Havana Charter for an International Trade Organization. Although the treaty standard was not formulated as ‘Fair and Equitable treatment’ but rather as ‘just and equitable treatment’, the Havana Charter is widely recognized by the vast majority of scholars as the foundation of the treaty standard in contemporary BITs and regional treaties. Article 11(2) of the Havana Charter stated that the International Trade Organisation ( hereinafter ITO) could:

“1) Make recommendations for and promote bilateral or multilateral agreements on measures designed..

2) to assure just and equitable treatment for the enterprise, skills,

Prior to the FCN treaties, the standard was referred to as ‘just and equitable treatment’. The United States based its treaty language on its predecessor, the protection provision incorporated in the Havana Charter in 1954. The Draft Convention on Investments Abroad was developed in 1959, also known as the Abs-Shawcross Draft. The obligation of the contracting parties to “ensure fair and equitable treatment to the property of the nationals of the other Parties” was incorporated in its first Article. The Draft Convention was developed under the leadership of Herman Abs and Lord Shawcross, hence the synonym Abs-Shawcross

It is argued fair and equitable treatment was referred to as the ‘general principles of justice and equity’ as early as the 18th century, devoloped to limit sovereign power. BLANDFORD puts forward the view that the minimum standard of treatment is to be derived from these ‘general principles of justice and equity’ and not from customary international law. These ‘general principles of justice and equity’ represent the “basic protections as developed by the domestic regulation of civilized countries”. The proponents of this theory also consider the concept of fair and equitable treatment to be the same as the minimum standard of treatment in customary international law. Therefore tribunals should interprete the contemporary fair and equitable treatment standard in accordance with the minimum standard of treatment, rather than an autonomous protection standard. The relationship between fair and equitable treatment and the minimum standard of treatment will be examined in Chapter…The OECD Draft Convention recognizes the minimum standard of treatment in customary international law as the source of the contemporary fair and equitable treatment standard. However, Blandford does acknowledge the establishment of the exact words ‘fair and equitable treatment’ as a treaty standard in post