In the comments, anon99 says:
Pauwelyn has a new article which "claims that based on fifteen years of operation both the hopes and fears traditionally linked to TRIPS and its enforcement under the WTO dispute settlement system were and continue to be largely exaggerated." It is getting close to 15 years since the infamous Ethyl case, and I would say the same of BITs and NAFTA Chapter Eleven. I'd like to throw out a challenge to anyone reading this: Can anyone point to any BIT or Chapter Eleven award in which a tribunal found a violation of the "fair and equitable" treatment standard (or any other such standard, e.g. "arbitrary", "unreasonable", etc.) that was unjustifiable? Overly broad statements about the content of this standard, yes - definitely - but can anyone point to any case in which the actual finding was cause for concern?
I'm not aware of any such case, but then again I've only read about 20 of these decisions, so I'm probably not the best person to ask. Anyone else with thoughts? Are there any investment arbitration decisions which find a violation of the "fair and equitable" treatment requirement or similar standards, and can be said to be "unjustifiable"?
Let me also put out an alternative question: Are there any investment arbitration decisions on these issues which do not find a violation and are "unjustifiable"? That is, are there decisions where the tribunal should have found a violation but did not? What I'm getting at here is whether some arbitrators are trying to rein in the broad standards in the text of these agreements in order to prevent harm to the system from decisions which seem too intrusive into domestic affairs.
