Historicizing Fair and Equitable Treatment Trade-to-Investment Genesis
成果类型：
Article
署名作者：
Duggal, Kabir
署名单位：
Harvard University
刊物名称：
HARVARD INTERNATIONAL LAW JOURNAL
ISSN/ISSBN：
0017-8063; 2153-2494
发表日期：
2026
页码：
583-615
关键词：
摘要：
This Note offers a historically grounded reappraisal of the origins and conceptual architecture of the fair and equitable treatment (FET) standard in international investment law, challenging the entrenched orthodoxy that treats FET as a doctrinal derivative of the customary international law minimum standard of treatment (MST) and, in particular, the canonical formulation articulated in Neer v. Mexico. Drawing on a meticulous examination of contemporaneous archival materials and U.S. treaty practice, the Note demonstrates that this prevailing account reflects a retrospective doctrinal synthesis rather than an historically substantiated lineage. It argues, instead, that FET emerged as a purposive instrument of economic governance within the transformation of U.S. commercial diplomacy during the Roosevelt Administration, crystallizing in the context of the Reciprocal Trade Agreements Act of 1934 as a mechanism designed to discipline discrete forms of sovereign economic conduct-most notably in relation to state monopolies, foreign exchange controls, and public procurement-where unstructured discretion threatened commercial reciprocity and market access. In its earliest iterations, FET did not embody a general standard of investor protection, but functioned as a targeted normative constraint, articulating expectations of non-discrimination, procedural regularity, and commercially reasonable conduct in specific domains of state activity. The Note traces the subsequent doctrinal migration of this trade-based standard into the post-World War II architecture of investment treaties, where it was progressively abstracted, universalized, and reinterpreted through the lens of MST, thereby obscuring its distinct genealogy and transforming its functional character. By reconstructing FET's origins as autonomous from, rather than derivative of, MST, this study not only fills a critical gap in the historiography of international investment law, but also provides a more coherent analytical foundation for contemporary treaty interpretation, suggesting that the standard's modern elasticity and expansiveness are better understood as the product of its evolution from a context-specific instrument of economic diplomacy into a generalized and highly indeterminate norm of investor protection.