Türkiye Barolar Birliği Dergisi 139.Sayı

249 TBB Dergisi 2018 (139) Oğuz Kaan PEHLİVAN rında bu formülasyon kabul edilmiştir. 2004 tarihli ABD model yatı- rım antlaşmasının Asgari Muamele Standardı kenar başlık 5. maddesi uyarınca; “Her bir Akit Taraf, yatırımcılara, adil ve eşit muamele ile tam koruma ve güvenlik dâhil örf ve adet hukuku uyarınca muamelede bulunmayı kabul eder.” 24 Benzer şekilde 2004 tarihli Kanada model yatırım antlaşması aynı hükmü içermektedir. 25 Sermaye aktaran devletler, ev sahibi ülkelerde 24 Article 5: Minimum Standard of Treatment [Article 5 [Minimum Standard of Tre- atment] shall be interpreted in accordance with Annex A.] 1. Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full pro- tection and security. 2. For greater certainty, paragraph 1 prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to covered investments. The concepts of “fair and equitable treat- ment” and “full protection and security” do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights. The obligation in paragraph 1 to provide: (a) “fair and equitable treatment” includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world; and (b) “full protection and security” requires each Party to provide the level of police protection required under customary international law. 3. A determination that there has been a breach of another provision of this Tre- aty, or of a separate international agreement, does not establish that there has been a breach of this Article. . . . Annex A: Customary International Law The Parties confirm their shared understanding that “customary international law” generally and as specifically referenced in Article 5 [Minimum Standard of Treatment] and Annex B [Expropriation] results from a general and consistent practice of states that they follow from a sense of legal obligation. With regard to Article 5 [Minimum Standard of Treatment], the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens. 25 Article 5: Minimum Standard of Treatment 1. Each Party shall accord to covered investments treatment in accordance with the customary international law minimum standard of treatment of aliens, inclu- ding fair and equitable treatment and full protection and security. 2. The concepts of “fair and equitable treatment” and “full protection and secu- rity” in paragraph1 do not require treatment in addition to or beyond that which is required by the customary international lawminimum standard of treatment of aliens. 3. A determination that there has been a breach of another provision of this Agre- ement, or of a separate international agreement, does not establish that there has been a breach of this Article.