Research On Fair And Equitable Treatment Clauses In International Investment Agreements And Its Enlightenment To China

The fair and equitable treatment clause is one of the most controversial clauses in the current practice as an important clause to protect investment interests in the international investment agreement.It is frequently cited by the International investment Tribunal and investors in investment disputes between investors and host countries.Since the fair and just treatment clause itself is abstract and broad,the arbitral tribunal has certain discretion in applying the clause and expands the interpretation of the clause,resulting in the imbalance of interests between investors and host countries,thus triggering international disputes.With the continuous development of "One Belt,One Road",the problem of fair and equitable treatment clause in China investment treaty has been paid attention to.Therefore,the study of the fair and just treatment clause is not only of great significance for resolving international investment disputes and balancing the interests between investors and host countries,but also provides important inspiration for the reform of the fair and just treatment clause in China.This paper will take the fair and just treatment clause in the international investment agreement as the theme,comb and summarize the practice status of the fair and just treatment clause and specific cases in the practice of international investment arbitration,focus on the analysis of the difficulties in the application of the clause,and finally learn from the "closed" enumerating path led by the European Union,supplemented by exceptions to reform and improve the clause.Apart from the introduction and conclusion,this paper consists of four parts,the key part is the third part of the problem analysis and the fourth part of the countermeasure research.The first part,from the theoretical level,studies the overview of fair and just treatment clauses,understands the origin and development of fair and just treatment clauses,and the development trend of fair and just treatment clauses from general provisions to specific enumerations of connotation elements.It concludes that its connotation elements include reasonable expectation of investors,principle of good faith and due process of procedural elements,non-refusal of judicial prohibition of discrimination and transparency requirements.Then the article is defined by the connection between customary international law and minimum treatment standard.The second part,from the perspective of treaty practice,presents the status quo of the fair and just treatment clause in the current international investment agreement in the form of charts,and analyzes the differences in terms of wording,ambiguous connotation and the defects of the fair and just treatment clause in combination with the status quo.The third part,from the perspective of international investment arbitration practice,lists three typical cases of international investment arbitration.Through the analysis of arbitration award and the common problems in all cases,it concludes that there are difficulties in the application of the fair and just treatment clause in practice,such as inconsistent interpretation methods,unclear connotation elements,and interest imbalance between the host country and investors.In the fourth part,from the level of reform and countermeasures,the author tries to find appropriate ways to improve the application predicament of the above mentioned fair and just treatment clause.The reform of the fair and just treatment clause in international investment is mainly based on the closed list led by the European Union.On this basis,the author sets up exceptions to the application of the fair and just treatment clause.In order to balance the interests of investors and host countries,a system of prevention of abuse of litigation should be established to prevent the abuse of investors and the expansion of the arbitral tribunal’s discretion.Finally,combined with the existing provisions of Chinese provisions,we obtain the unified wording and interpretation method,"closed" enumeration of connotation elements,adding exception clauses,allowing negotiation of new connotation elements and other important enlightenment,so as to prevent the risk of litigation in the future,so as to maintain China as the host country and investor.