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The First Bilateral Investment TreatiesU.S. Postwar Friendship, Commerce, and Navigation Treaties$
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Kenneth J. Vandevelde

Print publication date: 2017

Print ISBN-13: 9780190679576

Published to Oxford Scholarship Online: April 2017

DOI: 10.1093/acprof:oso/9780190679576.001.0001

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The International Law of Foreign Investment in the FCN Treaties

The International Law of Foreign Investment in the FCN Treaties

(p.379) 8 The International Law of Foreign Investment in the FCN Treaties
The First Bilateral Investment Treaties

Kenneth J. Vandevelde

Oxford University Press

The New Deal liberalism that FCN treaties sought to project onto the world was defined by basic rule-of-law principles found in the U.S. Constitution and by the free enterprise system. The United States was seeking in its treaties to obtain for U.S. investors abroad the same protection that foreign investors already received in the United States, and thus the treaties did not provide greater rights than those granted by U.S. law and policy. In general, the treaties sought non-discriminatory (national and MFN) treatment for investment, security for investment against expropriation, a guarantee that regulations of investment would be reasonable, and due process for investors—all reflected in an overall requirement of fair and equitable treatment. The treaties also pervasively recognized the legitimate power of host states to regulate investment, subject to these basic principles. This chapter explains the meaning of each of the investment-related provisions in the treaties.

Keywords:   New Deal liberalism, rule of law, free enterprise, national treatment, MFN treatment, fair and equitable, expropriation, national security exception, power to regulate, no greater rights

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