Research On Fair And Equitable Treatment Clause In International Investment Agreement

Fair and equitable treatment clause is a common clause in international investment ag reements,and even known as the "imperial clause" in international investment law.At pres ent,fair and equitable treatment clause is frequently cited by investors in investment dispu tes between investors and host countries,which has aroused the attention of more and mor e countries.Due to the vagueness of the concept of Fair and equitable treatment clause,the wording of this clause has not formed a consistent expression,which may lead to the risk of not being recognized as investment treatment in practice.In addition,in the practice of i nternational investment arbitration,with the increasing content of the elements of fair and equitable treatment clause,the extension is constantly expanded,so that the improper use of this clause leads to the conflict of arbitration awards.On the basis of the greater discreti on,the arbitral tribunal’s interpretation of the Fair and equitable treatment clause shows a t rend of expanding,which leads to both the damage of the host country’s governing power and the expansion of investors’ interests,and leads to the imbalance of the interests of the t hem.In order to cope with these problems,different countries have tried different reform p aths,among which the reform paths of the United States and the European Union are the most influential.The reform path of the United States is an open list combined with intern ational minimum treatment standards,while the reform path of the European Union is a cl osed list.However,the internal manifestations of its reform are reflected in improving the certainty of terms and limiting the scope of Fair and equitable treatment terms,so as to ach ieve the purpose of balancing the interests of the host country and investors.When signing or revising provisions of Fair and equitable treatment,China has been an independent acti ve promoter.But there is still unclear understanding of the nature and status of the provisi ons,and there is a significant risk of being prosecuted.Combining with the foreign reform practice and China’s current development situation in the field of international investment,this paper puts forward some suggestions: set up independent Fair and equitable treatment clause,set a closed list to enumerating this clause’s restrictions,bring the treaty principle i nto the article paradigm and increase the exception clause to raise the applicable threshold.