Issues frequently arising under the Fair and Equitable treatment standard (FET) include:
- Whether the State has made available to the investor a stable and predictable legal framework;
- Whether the State made specific representations to the investor;
- Whether the investor was denied due process;
- Whether there was an absence of transparency in the legal procedure or in the actions of the State;
- Whether there was harassment, coercion, abuse of power or other bad faith conduct by the host State; and
- Whether any of the actions of the State were arbitrary, discriminatory or inconsistent.
The assessment of the reasonableness or legitimacy must take into account all relevant circumstances, including not only the facts surrounding the investment, but also the political, socioeconomic, cultural and historical conditions prevailing in the host State.
Relevant Experience of BODENHEIMER Attorneys
Axel Benjamin Herzberg and Dr Rouven F Bodenheimer routinely advise both, investors and governments on international investment law issues. Mr Herzberg also handled a number of ISDS cases as Deputy Counsel at the Secretariat of the ICC International Court of Arbitration in Paris.
Dr Nicolas Klein worked for German Federal Constitutional Court Justice Professor Dr Andreas Paulus, himself a renowned public international law specialist who represented Germany, inter alia, before the International Court of Justice in the LaGrand case against the United States. Both, Dr Klein’s doctoral thesis and his LL.M. studies at Columbia University (New York) revolved around issues of international investment law, in particular the scope of application ratione personae of bilateral investment treaties.
BODENHEIMER Representative Matters as Arbitrators
Acted as Co-Arbitrator in a DIS arbitration between a German state-funded research organisation and a German software developer, revolving around claims arising out of IP and IT laws, with German Law as the governing law and Munich as the place of the arbitration (Axel Benjamin Herzberg)
Acted as Presiding Arbitrator in a DIS arbitration between two German parties, both former members of a partnership of forensic scientist, revolving around claims arising out of competition, corporate and IT laws, with German Law as the governing law and Würzburg as the place of the arbitration (Axel Benjamin Herzberg)
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