Fair and Equitable Treatment: Its Interaction with the Minimum Standard and Its Customary Status Patrick Dumberry Abstract Keywords General Introduction I The Interaction between the 'Minimum Standard of Treatment' and the FET 1.1 The Concept of the MST and Its Customary Status 1.2 The Historical Foundation of the MST 1.3 The Challenge to Existing Customary Rules, Including the MST, Led by Newly Independent States in the 1960s and 1970s 1.4 The New Phenomenon of 'Treatification' in the 1990s 2.1 Early Appearance of the Standard in Multilateral Instruments and Current Overwhelming Presence in BITs 2.2 Why Did States Start Referring to the FET Standard Instead of the MST in Their Investment Treaties? 2.3 FET Should be Considered as a Treaty Standard Independent from the MST, Except in Specific Situations 3.

1 The Broad Interpretation Given to FET Clauses by Arbitral Tribunals and the Importance They Gave to the Terms Used under These Provisions 3.2 States' Reactions to These Awards 3.3 CETA: the Ultimate Detailed FET Clause II Has the FET Standard Become a Rule of Customary International Law? 3.1 Introductory Remarks on the Phenomenon of Custom 3.2 How Can Provisions Contained in BITs Transform into Customary Rules? 3.3 Examination of State Practice 3.3.1 The Practice of States Parties to BITs 3.

3.1 State Practice is General and Widespread 3.3.2 State Practice is Representative 3.3.3 State Practice is Not Uniform and Consistent 3.3.2 The Practice of States Outside the Treaty Framework 3.

4 Do States Have opinio juris When they Include FET Clauses in their BITs? General Conclusion Bibliography.