A Study Ont The "Fair And Equitable Treatment" Under International Investment

Since the first international investment Case concerning "Fair and Equitable Treatmnet" was brought about, "Fair and Equitable Treatment" came to be the most important and sacred "emperor rule" in international investment field. In each case with regard to "Fair and Equitable Treatment", the tribunal made multi- angel and multi- layer explanations towards the content of FET, which embodies the complexity of the FET. My article is a thesis that explores the substantive content of the "Fair and Equitable Treatment", trying to illustrate the implications and the nature of the FET through study of the decided cases of the ICSID tribunals.The main idea of my thesis is as following:firstly, my thesis makes a historical study on the traditional international investment rules that have important historical impact on the "Fair and Equitable Treatment", based on which my thesis makes a detailed study on the historic origin and the current situation of the "Fair and Equitable Treatment"; secondly, my thesis makes a study on the word origin of the "Fair and Equitable Treatment", the relationship with other foreign investors treatment standards, as well as the relationship with the main international law theories; then, my thesis makes a detailed research on both the substantive standards and the procedural standards implied in "Fair and Equitable Treatment"; finally, my thesis makes a study of the state liability theory’s application in the "Fair and Equitable Treatment" cases.The "Preface" of my thesis firstly makes a detailed study on the historical background of the "Fair and Equitable Treatment". This part mainly discusses the relationship between the "Fair and Equitable Treatment" and the traditional international law rules and the rationality for FET to be a key standard in international investment law, which is based on the description of the three critical historic transformations of the international investment law and combined with the emergence, development, and evolving process of the "Fair and Equitable treatment".Chapter One focuses on three issues:firstly, this chapter gives a description of the development process of the "Fair and Equitable Treatment", i.e. the process of the flourish of the "Fair and Equitable Treatment" from the emergence in the early international economic and trade treaties to the modern international investment treaties; secondly, this chapter makes a study on the implications of the two words "fair" and "equitable" that constitute "Fair and Equitable Treatment", including the plain meaning, the specific meaning in the common law system, as well as in the modern international law. Based on this analysis, this chapter comes to a preliminary understanding on the meaning of the "Fair and Equitable Treatment"; thirdly, this chapter makes a comparison between the "Fair and Equitable Treatment" with the other main investor treatment standards, i.e. the National Treatment and the Most-favored-Nation Treatment both in the international investment treaties, as well as in the international investment arbitration practice. Based on the comparison between these standards, we can come to better understand the meaning of the "Fair and Equitable Treatment" in the context of the international investment law.Chapter Two focuses on three issues:firstly, this chapter makes an exploration of the international law origin of the "Fair and Equitable Treatment", which is not a self-contained system. In practice, the interpretation of "Fair and Equitable Treatment" needs to be backed by the international law theories, including the interpretation of the conventions, customary international law, the minimum standard of international law, the general principles recognized by civilized countries, as well as the principle of ex aequo et bono, etc. These aspects were embodied in a number of cases in practice; secondly, this chapter makes a study of the relationship between the "Fair and Equitable Treatment" and customary international law, as well as the relationship between the "Fair and Equitable Treatment" and the minimum standard of international law. This chapter also makes a study on the application of the two theories in the investment practice, and analyzes the function of the two theories as well as the shortcomings of them when applied in the explanation of the "Fair and Equitable Treatment".Chapter Three focuses on four issues:Part one firstly makes a study on the general meaning of the Non- discrimination and the specific implications in the international investment field, and then continues to make a detailed research on the international investment cases and draw a conclusion on the types of the discriminations that could lead to the state liability of the host state for the breach of "Fair and Equitable Treatment"; part two firstly makes an introduction of the domestic law basis for "the investor’s legitimate expectations" and makes a further analyze on the "the investor’s legitimate expectations" in the international investment field. Through a detailed study on the cases concerning the investor’s legitimate expectations, this part illustrates the elements that influence the legitimacy of the investors and the weight of each factor in determining whether the "Fair and Equitable Treatment" is breached; part three firstly makes a preliminary introduction of the history, nature, and the legal consequences of the "indirect expropriation", and then continues to make a study on the international investment cases that were brought about on the basis of "indirect expropriation". Based on these studies, this part draws a conclusion on several questions, including the types of host state behaviors that could lead to "indirect expropriation" state liability, the difference and interaction between "indirect expropriation" and "Fair and Equitable Treatment"; part four focuses on the problem whether the investors’"contract rights" deriving from the investment contracts could fall under the jurisdiction of the international investment arbitration tribunal, i.e., whether the "contract claim" could rise to the level of "treaty claim". And further, this part draws a conclusion on the conditions of this probable transformation.Chapter Four makes a deep study on the procedural disputes and the related theories deriving from the international arbitration in the field of "Fair and Equitable Treatment". Part one focuses on the historic origin of "Due Process" as the fundamental principle and continues to illustrate the due process that the host state should abide by in the international investment field; part two starts from the exploration of the meaning of "transparency"; part two continues to discuss the concrete duties of the host states under the transparency principle, and the types and degrees of the host state behavior that could lead to the breach of the "Fair and Equitable Treatment" and constitute state liability; part three firstly makes an introduction on the historic origin, the development process, as well as the implications of the "Denial of Justice" in the modern law. Based on this, this part continues to make a study on the cases concerning "Denial of Justice" in the international investment field. Through these studies, this part draws a conclusion on several issues of whether "Denial of Justice" could lead to the state liability and the types of host state behaviors that could constitute "Denial of Justice" and breach the "Fair and Equitable Treatment"; part four firstly makes an introduction on the historic origin, the theoretic basis, as well as the implications of the customary rule of "Exhaustion of Local Remedies", and then continues to make a further study on the status of the rule in the international investment law field and the limited application of the rule in the "Fair and Equitable Treatment" cases.Chapter Five focuses on two issues:firstly, this chapter analyzes the types of the host state behaviors that could lead to the breach of "Fair and Equitable Treatment" and constitute state liability; secondly, this chapter analyzes the application of the "attribution theory" and "subject theory" in the "Fair and Equitable Treatment" cases.