The Research Of Fair And Equitable Treatment In International Investment Law

As one of the host country treatment for foreign investors, F&E treatment firstappeared in the friendly nautical treaty, and then widely used in the bilateralinvestment treaties after the1960s. However, the relationship between the F&Etreatment and other international treatment standard is not clear. F&E treatment isoften seen as part of the international minimum standard treatment or directequivalent to it. Recently, the international legislation and arbitration practice tend tointerpret it as an independent treatment standard of foreign investment. However, thecontent of F&E treatment standard hasn’t been certain, for the perspective of thepractice of international arbitration, full protection and security、transparency、dueprocess and reasonable expectation of investors is often a factor.In the investment arbitration practice, Early NAFTAarbitration gave too muchattention to the protection of the investors, broad interpretation method was adoptedfor treatment of F&E, like references to other section or adoptes the directinterpretation method. After the FTC explaination, the tribunal began to carefullyapply the F&E treatment, and its connotation has also been continuously enrichedand developed, contained the judicial fairness and transparency, non-arbitrary,non-discrimination principle, protect investor’s expectation, etc. The process ofconsiderations for F&E treatment by ICSID arbitration tribunal was constantlyenrich and development, that from the initial simple treaty reference to entityelements analysis of a specific case, and from a single judgement to the analysis ofvarious elements. And the tribunal gradually favour to explain F&E treatmentstandard from the purpopse of the treaty.With the coming of international investment liberalization, F&E treatmentstandard began to develop from the one-sided protection of the investors to balancethe interests of the state and the interests of investors. Preface BIT contractingpractice throughout China, simple narrative of treaty purpose, different words aboutF&E treatment, the fuzzy of the connotation, lack of necessary rules and security terms, etc. such problems were still outstanding, which are hidden risk involvinginternational arbitration lawsuit. To deal with these risks, should consider thefeasibility to choose suitable ICSID dispute settlement mechanism, and eliminate thedisputable of F&E treatment; Perfect the treaty, add necessary security exceptionclause, highlighting the purpose of protection of the host countries’rights andinterests; Clarify the relationship between F&E treatment and other treatment orprinciple, ensure its independent status;And should reasonable definite the contentof F&E treatment, according to the contracting practice, the less controversialelements like arbitrary judgment and due process could be as the applicable rules ofthe treatment to specify in the treaties.