Research On Minimum Standard Of Treatment In International Investment Agreements

Since the emergence of the minimum standard of treatment in the field of international investment agreement,except for the United States,Canada,Mexico and other countries in North Amertica,only a few countries have included the minimum standard of treatment in the international investment agreement.Compared with the fair and equitable treatment that appeared earlier in the field of international investment agreement and widely incorporated into international investment agreements concluded worldwide,the minimum standard of treatment has not received enough attention.The purpose of this thesis is to clarify the meaning of the minimum standard of treatment by analyzing the minimum standard of treatment clauses in international investment agreements and international investment arbitration practices,and to provide a relatively objective perspective for the understanding of the minimum standard of treatment.This thesis mainly adopts the empirical analysis method to analyze and summarize the minimum standard clauses in international investment agreements concluded by various countries,so as to understand the main contents of the minimum standard of treatment clauses and to establishes the constituent elements of the minimum standard of treatment.In the meanwhile,the case analysis method is adopted,and the ICSID awards involving the minimum standard of treatment are used as analysis samples to discuss how the international investment arbitral tribunal determines whether the conducts of States constitute a breach of minimum standard of treatment.This thesis is splited into three chapters.The initial chapter describes the emergence and development of the minimum standard of treatment,discussing the contents of minimum standard of treatment clauses in the international investment agreement.Based on this,the relationship between the minimum standard of treatment and fair and equitable treatment is further analyzed.The second chapter establishes the constituent elements of the minimum standard of treatment as customary international law through the contents of the minimum standard of treatment clauses.This chapter also invokes a large number of international investment arbitral awards of ICSID to analyze how the international investment arbitral tribunal applies the standards of customary international law.In this process,this thesis finds that the international investment arbitration tribunal tends to limit its discretion in the application of the minimum standard of treatment and adopts a more restrained attitude in the process of determining whether the conducts of State violate the minimum standard of treatment or not.The third chapter is based on the analysis of the first two chapters to discuss whether China should include minimum standard of treatment or not.This thesis holds that the minimum standard of treatment is a standard of treatment with higher uncertainty.But given the prudent application path that adopted in the international investment arbitration practice,the minimum standard of treatment is still a standard that can balance the regulatory power of host countries and the interests of investors.Therefore,the minimum standard of treatment may be included in the international investment treatment concluded by China.Finally,this thesis analyzes the best way to incorporate the minimum standard of treatment and proposes the best model for reference.