Empirical Study On The Application Of FET By ICSID Arbitration

During the developing history of international investment,the Takings Clause used to occupy a more important position compared to the Fair and Equitable Treatment,“FET” for short.However,since the large scale of expropriation and nationalization decreased and gave way to the less aggressive economic policies of the host state,and the natural trait of absolute treatment standard of FET,using FET as the claim has gradually become a very popular litigation strategy.Nowadays,besides claims based on the specific facts of each case,almost every case would claim for FET at the same time.According to the development of the application of FET Clause by International Center for Settlement of Investment Disputes,“ICSID” for short,the first ICSID case applying FET has not appeared until year 1999,and only until 2000 there appeared the first ICSID case in which the arbitral tribunal find that the host state in breach of FET.From the year 2007,FET Clause has taken an important position when ICSID dealing with the international investment disputes.The big data and visualizing analysis of this article are based on 163 concluded English arbitrations published on ICSID official website.Through the statistics and analysis on how ICSID applying FET,we could see that the general roadmap for tribunal applying FET is,first to explain and identify the judgment standard of FET,and then applying the corresponding judgment elements of liability threshold.Here,the main parameters influence the liability threshold of FET are the expression of FET and the development of time.Based on the big data statistics and visualizing analysis of how the expression of FET and the development of time affect judgment standard and judgment element of liability threshold,the regularity will be discussed later in the Chapter 3 of this article.Through this kind of regularity,the author will try to make proposal for the design of international investment treaty for China,and also discuss the points for attention for the outbound investment of Chinese investors.This article is divided into four chapters.In Chapter One,this article illustrates the fundamental theory and raise the question.By illustrating the content of FET Clause,the development and problems facing in the development of FET Clause has been further discussed.And as the problems facing in the development of FET Clause,this article gives the roadmap adopted by the USA and European countries.Chapter Two is the big data statistics and visualizing analysis based on the 163 concluded English arbitrations published on ICSID official website up to December 31,2017.It can be divided into three levels,which are fundamental data analysis,FET influencing data analysis,and data analysis of FET liability threshold.Chapter Three is based on the statistics and analysis of Chapter Two.Chapter Three analyzes the regularity of how ICSID applies FET Clause,and it can be divided into two levels,which are the parameter and regularity influencing FET's judgment standard,and the parameter and regularity influencing judgment element of FET's liability threshold.Combined with the discussion of previous three chapters,Chapter Four mainly focuses on making proposal for the design of international investment treaty for China.Besides,it also discusses the attention points for the outbound investment of Chinese investors.Finally,in the conclusion part of this article,the author summarizes the whole studying process and the main findings.