Model Essay Writing |  Research and writing guide  |  Approx. 3,800 words

A strong answer should begin with the applicable treaty text. It should then ask what legal source gives content to that text. Only after those steps should it compare awards. The July 2026 publication of the CETA Joint Committee’s binding Interpretation No 1/2026 gives students a particularly good way to test whether states have finally controlled the standard, or merely moved uncertainty into new words such as “manifestly arbitrary” and “specific representation”.

A defensible thesis

• Introduction: define the precise claim, identify the two forms of reform and state the dual-track thesis.
• Doctrinal baseline: distinguish autonomous FET from FET tied to the customary minimum standard of treatment, using Waste Management II, Saluka and Philip Morris v Uruguay.
• Treaty reform: analyse CETA Articles 8.9 and 8.10, Interpretation No 1/2026, the 2019 Netherlands Model BIT and the modernised Energy Charter Treaty.
• Recent arbitral practice: compare Red Eagle v Colombia, Mason Capital v Korea, Gabriel Resources v Romania and Telefónica v Colombia.
• Associated standards: explain overlap and separation between FET, full protection and security, denial of justice and indirect expropriation.
• Critical evaluation: test whether closed lists improve predictability, preserve regulatory space and answer concerns about the legal basis of legitimate expectations.
• Conclusion: answer the exact proposition and explain why treaty stock, clause wording and proof still matter more than a single general account of FET
  

Start with the clause, not the case list

The fastest way to lose control of an investment-law essay is to treat FET as a single global rule. The clause may be autonomous, tied to customary international law, or expressed through an exhaustive list. Those choices affect the legal source, the threshold of breach and the role of prior awards. Gabriel Resources v Romania illustrates the method. The tribunal faced one BIT containing a bare FET promise and another linking FET to the customary minimum standard. It began with ordinary meaning and context under Article 31 of the Vienna Convention on the Law of Treaties. That sequence should also control the essay.

“The list of elements in Article 8.10.2 is exhaustive”
CETA Joint Committee, Interpretation No 1/2026, para 1(a)

CETA Article 8.10(2) lists denial of justice, fundamental breach of due process, manifest arbitrariness, targeted discrimination and abusive treatment. Article 8.10(4) permits attention to a specific representation made to induce an investment, relied upon by the investor and later frustrated. Article 8.10(5) confines full protection and security to physical security. Interpretation No 1/2026 then states that the FET list is exhaustive, requires local remedies for denial of justice subject to narrow exceptions, and defines due-process breach through improper and egregious conduct. It also links manifest arbitrariness to the absence of a rational connection with a legitimate policy objective.

An essay should separate three ideas. The first is autonomous FET, where the treaty promises fair and equitable treatment without expressly referring to custom. The second is FET as part of the customary minimum standard of treatment of aliens. The third is a modern closed-list clause that defines breach. Awards can assist interpretation across these categories, but they cannot erase textual differences.

“arbitrary, grossly unfair, unjust or idiosyncratic”

Waste Management II v Mexico, Award, para 98

Waste Management II remains a useful starting point for the customary minimum standard because it combines substantive and procedural wrongs and signals a demanding threshold. Saluka dealt with autonomous FET and placed legitimate expectations within a balance between investor reliance and the host state’s public-interest regulation. Philip Morris v Uruguay later rejected the idea that FET freezes general legislation, especially in a field subject to strong public-health regulation.

“No investor may reasonably expect that the circumstances prevailing at the time the investment is made remain totally unchanged”

Saluka v Czech Republic, Partial Award, para 305
“a kind of insurance policy against the risk of any changes”
Philip Morris v Uruguay, Award, para 423

The change is visible in both new texts and later joint interpretations. The 2019 Netherlands Model BIT uses a defined list resembling CETA. The modernised Energy Charter Treaty, adopted in December 2024, replaces the original open-textured FET language with an enumerated standard and confines legitimate expectations to clear and specific representations or commitments that were reasonably relied upon. Kluwer Arbitration Blog’s discussion of the modernised text correctly identifies the exclusion of a general expectation that the regulatory framework will never change. Monti and Fermeglia’s 2024 analysis asks the harder question: how far does the new text depart from the arbitral practice developed under the original ECT?

The 2026 CETA Interpretation is more important than a drafting fashion because it shows treaty parties using an institutional mechanism to direct future adjudication. The measure was adopted on 5 March 2026 and published in the Official Journal on 3 July 2026. CETA’s investment-court provisions are not yet in provisional operation, so the interpretation’s immediate practical reach is limited. Its interpretive signal is still strong. States can narrow a treaty through a binding joint act without negotiating an entirely new BIT.

Recent awards show a dual-track regime

Red Eagle v Colombia: legitimate expectations under the customary minimum standard

Red Eagle Exploration Ltd v Colombia, decided in February 2024, is a strong authority for a restrictive approach. The tribunal majority asked whether legitimate expectations formed part of customary international law. It required state practice and opinio juris, not a line of awards alone. The majority found the evidence insufficient and treated a specific promise as relevant only if the resulting conduct fell below the customary minimum standard. It also stressed proof of actual inducement and reliance. The claim failed.

“insufficient evidence to support the proposition that the doctrine of legitimate expectations ... is part of the customary MST”

Red Eagle v Colombia, Award, para 293

Mason Capital v Korea: a customary clause can still produce liability

Mason Capital LP v Republic of Korea, decided in April 2024, prevents the essay from equating a customary-minimum-standard clause with automatic state success. Article 11.5 of KORUS states that FET and full protection and security do not require treatment beyond customary international law and “do not create additional substantive rights”. The tribunal nonetheless found a breach arising from state interference connected with the Samsung merger and awarded part of the claimed loss. The lesson is about threshold and proof, not immunity. A narrow legal standard may still be breached by well-evidenced, serious misconduct.

Telefónica v Colombia: older BIT language still matters

Telefónica SA v Colombia, decided in November 2024, supplies the clearest contrast. The tribunal found that a long-standing legislative framework and about fifteen years of consistent state practice had created a stable and predictable setting for the telecommunications investment. A later reversal frustrated the investor’s legitimate expectations and breached the Spain–Colombia BIT. The award granted approximately US$379.8 million plus interest. Annulment proceedings followed. As of April 2026, the stay of enforcement had been lifted after Colombia did not provide the required guarantee.

Gabriel Resources v Romania: one dispute, two FET formulations

Gabriel Resources Ltd v Romania, decided in March 2024, is useful for essay method. The tribunal compared a bare FET clause in the UK–Romania BIT with a Canada–Romania clause expressly linked to the customary minimum standard. It interpreted each according to wording and context. The claimant ultimately lost. The case shows that the same facts may be presented under distinct treaty formulations and that an answer should not collapse them into a universal list of FET elements

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 Associated standards: overlap without merger

FET often travels with full protection and security, indirect expropriation and denial of justice. Their facts may overlap, but their legal tests remain separate. CETA makes the separation unusually clear. Article 8.10(5) confines full protection and security to physical security. Interpretation No 1/2026 treats denial of justice as a high-threshold procedural wrong and warns that an investment tribunal is not an appellate court for domestic judgments. Annex 8-A deals with indirect expropriation through substantial deprivation and protects non-discriminatory public-welfare regulation, while the 2026 interpretation further clarifies climate and environmental measures.

The distinction matters in problem questions and critical essays. A sudden regulatory reversal may be pleaded as frustration of expectations under FET, substantial deprivation under indirect expropriation, or insecurity under an older FPS clause. Each claim requires its own elements. FET can be breached without substantial deprivation. Indirect expropriation normally requires a much more serious effect on the investment. FPS may concern physical protection under a modern text, yet some older awards have read it more broadly. The answer should identify overlap in the facts and separation in the law.

How to use academic opinion critically

Academic writing should do more than decorate a paragraph. Use it to expose a legal or normative problem, then test that view against treaty text and awards. Jarrod Hepburn’s 2025 article is especially useful because it asks for the formal legal basis of legitimate expectations. He notes that the doctrine has been described as an “invention” of arbitrators and argues that, in many cases, its juridical foundation remains difficult. Red Eagle supplies an arbitral answer to that concern by refusing to infer custom from decisions alone. CETA supplies a treaty answer by expressly controlling when expectations may be considered.

Federico Ortino’s 2024 assessment describes the application of legitimate expectations as uncertain, inconsistent and inaccurate. That supports the case for tighter drafting, but the essay should test whether closed lists solve the underlying problem or only create new boundary disputes. Marco Monti and Dario Fermeglia examine the same tension through the modernised ECT. Their work helps a student compare reform language with the prior ECT case law rather than treating the new text in isolation.

Steven Ratner adds a normative dimension. He argues for greater deference where regulation implements human-rights duties, effectively placing public obligations above ordinary investor commitments. That view can support climate, health and environmental carve-outs. A critical answer should still ask whether deference is best achieved through tribunal doctrine, explicit treaty text or binding interpretations by the parties. The 2026 CETA instrument favours the latter two routes.

“an ‘invention’ of arbitrators”

Jarrod Hepburn, European Journal of International Law (2025)

“uncertain, inconsistent, and inaccurate”

Federico Ortino, in By Peaceful Means (OUP 2024)

“putting human rights on a higher plane than commitments to investors”

Steven R Ratner, Journal of International Economic Law (2022)

 Building the research into paragraphs

A useful paragraph has four moves. State the proposition. Identify the legal source. Use authority as evidence. Explain why the authority supports, limits or complicates the proposition. The quotation should be short and should never substitute for analysis. A good paragraph also distinguishes what the tribunal held from what an academic argues.

Sample introduction

Sample evidence and application paragraph

Sample counterargument paragraph

Sample academic evaluation paragraph

Sample conclusion

A research process students can repeat

Begin with the treaty database and save the exact clause, protocol, annex and any joint interpretation. Record whether the instrument is in force, provisionally applied, terminated or protected by a survival clause. Next, build a small authority table for yourself, even if it never appears in the essay. Record the clause type, legal source, threshold, facts, holding and the paragraph you may cite. Then read recent case notes on Kluwer Arbitration Blog and IISD Investment Treaty News to identify disputes and commentary. Return to the award before relying on the note. Finally, use academic articles to formulate the disagreement you will evaluate, not merely to collect definitions.

Keep each source in its proper role. The treaty provides the rule. A binding joint interpretation directs the treaty’s meaning. An award applies a clause to facts and may persuade another tribunal, but it is not formal precedent. An academic article explains, criticises or reconstructs the law. A blog post helps locate developments and competing views. When these roles remain clear, the essay reads as an argument rather than a catalogue.

Final writing point

The best critical answer will not announce that FET is broad or narrow in the abstract. It will show where the breadth comes from. Under CETA, the parties have closed the list and tightened the categories. Under a customary-minimum-standard clause, the claimant must establish the relevant custom and meet a demanding threshold. Under an older autonomous clause, tribunal reasoning on consistency, transparency and expectations may retain greater influence. The conclusion should match that legal map.

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