Original title: Yatırım Antlaşmalarında Yer Alan Adil ve Eşit Muamele İlkesinin Hukuki Niteliği
With the proliferation of bilateral and multilateral international investment treaties, the barriers to a global flow of investment have gradually weakened. The standards for the protection of investments in host countries have evolved over time into a separate international legal regime and principles to ensure that investments are protected independently of the law of the host country. We see that independent international principles and guidelines are included in investment treaties signed by states, either bilaterally or multilaterally. The inclusion of certain principles in these treaties makes it necessary to discuss the legal nature of these principles. It is important to determine under which heading these principles are included in the epistemological model of the sources of international law stipulated in Article 38 of the Statute of the Court of Justice. This is because the legal effects of these principles and their binding nature in terms of implementation will vary according to their legal nature. The principle of fair and equitable treatment is included in many bilateral or multilateral investment treaties. This principle is included in the treaties with a norm dimension.
This article aims to contribute to the debate on the legal nature of the principle of fair and equitable treatment. Is this principle a rule of customary law or has it become a rule of customary law? Can this principle be considered as a general principle of law? These questions are within the scope of this article. It should be noted in advance that this principle cannot be regarded as a rule of customary law or a general principle of law, but only as a norm in the relevant treaties in which it appears.
- Published in
- Türkiye Barolar Birliği Dergisi, Cilt 139, Sayı 239, 2018, ss.239-256
- Language
- Turkish