Formulations of Fair and Equitable Treatment Standard in South Asian Investment Agreements

Abstract

Fair and equitable treatment (FET) is a central standard in international investment agreements (IIAs) that protects foreign investors. In South Asia, bilateral investment treaties (BITs) and other investment agreements adopt diverse formulations of FET, reflecting differences in treaty drafting and policy priorities. Despite South Asia’s growing importance in international investment law, no comprehensive study has examined FET formulations across the region. Existing research focuses mainly on individual countries or arbitral decisions. This study employs a comparative doctrinal methodology to examine 209 BITs and related investment agreements concluded by six South Asian countries—India, Pakistan, Bangladesh, Sri Lanka, Nepal, and Afghanistan. The treaties were classified according to the type of FET clause they contain: combined with other investment protection standards, standalone, or qualified by international or domestic law. The analysis covers treaties in force, signed but not yet in force, or terminated treaties, and relevant model BITs. The findings show that combined FET clauses are the predominant drafting approach in South Asia, whereas standalone clauses occur less frequently and qualified clauses remain comparatively limited. India and Pakistan exhibit the greatest diversity in FET formulations, while Bangladesh, Sri Lanka, Nepal and Afghanistan demonstrate more limited drafting variations. The study contributes to international investment law by providing the first systematic regional comparison of FET formulations in South Asian investment agreements and offers insights for treaty negotiators, policymakers, and researchers concerned with contemporary investment treaty practice.