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Mme Estefanía Ponce-Durán

Senior Associate - Posse Herrera Ruiz

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Proportionality in FET

I. Definition


The doctrine of proportionality is a decision-making procedure used by courts and tribunals to weigh tensions between competing values or interests.1 It is used to determine whether a State’s encroachment upon an individual’s right is justified,2 balancing rights and rights-limiting policy choices.3 Proportionality demands that there be a reasonable relationship between the means employed and the aim sought to be realized.4


A proportionality analysis usually involves several of the following considerations:

  1. the legitimacy of the aim or public policy pursued, or whether the State is authorized to take such a measure;
  2. the suitability of the measure, i.e. whether the measure adopted by the State is appropriate or rationally-related to the stated policy objective;
  3. the measure must be the least restrictive means to effectively achieve the policy objective that would infringe the individual’s right to a lesser extent (the necessity of the measure); and
  4. proportionality stricto sensu, or whether the particular consequences of adopting the measure are excessive or disproportionate as compared to the aimed policy objective.5

II. Whether proportionality is a general principle of law


There is ample debate as to whether the doctrine of proportionality is a general principle of law, in accordance with Article 38(1)(c) of the Statute of the International Court of Justice. Bücheler has listed a series of scholars in either camp of this discussion, for further reading.6

III. Recognized as a stand-alone element of the Fair and Equitable Treatment (FET) standard


The doctrine of proportionality has been recognised as an element of the Fair and Equitable Treatment (FET)7 standard by a series of arbitral tribunals in investment-treaty arbitrations.8


In García Armas v. Venezuela, the tribunal held that the State measures were not proportional to certain alleged infractions, and that the administrative procedures which were initiated as a consequence of alleged breaches did not allow the investors to adequately exercise their defense.9


The tribunal in EDF v. Romania noted that there must be a reasonable relation of proportionality between the means employed and the aim sought to be realized, and that proportionality would be lacking if the person involved bore an individual and excessive burden.10 The tribunal examined whether the public policy in question was legitimate or in the public interest, and the adverse effect of the State measure.11

IV. In relation to other elements of the FET standard, such as arbitrariness or reasonableness


A proportionality analysis has also been applied in the context of other elements of the fair and equitable treatment standard.


The tribunal in Electrabel v. Hungary deemed that a measure will not be arbitrary if it is related to a rational policy and considered the need for an appropriate correlation between the State’s public policy and the measure adopted to achieve such policy. The tribunal then added that “this includes the requirement that the impact of the measure on the investor be proportional to the policy objective sought.”12


“[P]roportionality and reasonableness” were included as elements of the fair and equitable treatment standard, along with transparency, constant protection and security, non-impairment, and non-discrimination by the tribunal in RREEF v. Spain.13 The tribunal further considered that reasonableness in the exercise of regulatory power includes: legitimacy of purpose, necessity and suitability.14


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