Research On Fair And Equitable Treatment Clause In Bilateral Investment Agreements

The status of the fair and equitable treatment clause in the bilateral investment agreement is self-evident and has become one of the most controversial clauses in the field of international investment.It has been praised by scholars as an "imperial clause" in international investment arbitration comparable to the principle of honesty and credit in civil law.For a long time,it has been cited by developed country investors as the basis for international investment arbitration claims.The emergence of fair and equitable treatment is indeed a standard of treatment proposed by early developed countries when they make foreign investments in developing countries based on their distrust of the political and legal environment of developing countries.It is for this purpose that the terms of fair and equitable treatment are short and abstract in the bilateral investment agreements of various countries.On the one hand,they are limited by the technical level of legislation at the time.On the other hand,abstract and vague expressions can provide great explanation clauses.freedom of.However,with the two-way exchange of international investment,in the international investment exchanges,developing countries are no longer confined to the identity of the host country,and more and more developing countries are also beginning to develop into developed countries or other countries as investors of othercountries.Chinese countries invest.In the early days of international investment arbitration,almost all investors from developed countries submitted arbitration to developing country host countries.At this time,in the field of international investment,developed countries often used as host countries.The reliance of investors on the fair and equitable treatment clause and the broad application of the arbitral tribunal to fair and equitable treatment make the deficiencies in the application of this clause increasingly obvious.Moreover,the defects in the application of fair and equitable treatment are not only reflected in the inherent defects and shortcomings of the articles,but also closely related to the drawbacks of the international investment arbitration mechanism.This reality has led developed countries to change their views on unilateral protection of the interests of foreign investors,and gradually reform the terms of fair and equitable treatment in their bilateral investment agreements to better balance their sometimes as foreign investors.And sometimes as a protected host country,the protection of interests between the two identities.The international community has explored many aspects of the fair and equitable treatment clause,and countries have made many efforts to alleviate the application of the clause.After a detailed analysis and comparison of different reforms of the fair and equitable treatment clauses in the bilateral investment agreements represented by the United States and the European Union,this paper proposes a new legislative model,namely,the principle of fair and equitable treatment in bilateral investment agreements.Legislation techniques that combine the elements of regularization and fair and equitable treatments to resolve the current dilemma of the application.Finally,based on the status quo and actual situation of China's legislation,this paper deeply analyzes the current status and shortcomings of the current fair and equitable treatment in China's bilateral investment agreements,and fully demonstrates the reform in light of China's current status and identity in international investment practice.The necessity and feasibility of the fair and equitable treatment clause proposes legislative perfection for the improvement of this clause in China's bilateral investment agreement.In addition to the introduction and conclusion,this article can be divided into four chapters.The first chapter is an overview of the fair and equitable treatment provisions.This chapter elaborates on the concept of fair and equitable treatment clauses,the relationship between fair and equitable treatment and national treatment,MFN treatment and international minimum treatment standards,and the emergence and development of fair and equitable treatment provisions.Since fair and equitable treatment has never had a clear concept and standard,scholars from all over the world often inevitably compare it with the more mature national treatment and most favored nation treatment in the field of international investment,forming different views.The fair and equitable treatment and the international minimum treatment standard are closely related from the beginning of the production stage.There has been a debate among scholars on the relationship between the two treatment standards,and it is also reflected in the ruling of the International Investment Arbitration Tribunal on relevant cases.Different views on the issue between the arbitral tribunals.In the process of the development of fair and equitable treatment,the international minimum treatment standard and the fair and equitable treatment standard are two kinds of investment treatments that are included or identical,which are of great significance to the criteria for determining fair and equitable treatment clauses.Therefore,these two treatments The issue between standards is also one of the focal issues in the field of international investment as fair and equitable treatment.Therefore,in view of the complex relationship between them and their mutual differences,this chapter focuses on comparing and analyzing its relationship with international minimum treatment standards when discussing the relationship between fair and just treatment and other treatment standards.Finally,the author treats fair and equitable treatment and international The relationship between the minimum treatment standard and other treatment standards is to make their own understanding and put forward their own views.The second chapter is one of the key chapters of this article.This chapter analyzes in detail the applicable dilemmas faced by the current fair investmentprovisions in bilateral investment agreements.This chapter begins with the nature and status of the fair and equitable treatment clause.It is found that the positioning of the fair and equitable treatment clauses in the bilateral investment agreements is not clear.For the question whether the clauses belong to the principle clauses or the regulatory clauses in the agreement,There is a lot of debate in the academic and practical circles,and there is a lot of controversy in the international community about whether the fair and equitable treatment clauses that are prevalent in bilateral investment agreements should be attributed to the scope of international customary law.The ambiguity of the status and nature of the clause directly leads to the disagreement of the clause when it is applied.The fair and just treatment clause itself is succinct and abstract in the BIT,and the expressions are inconsistent.It also leads to the clauses of various countries,scholars and arbitral tribunals.The understanding and interpretation are inconsistent,which in turn leads to the arbitrarily and broad interpretation of the International Investment Tribunal by applying this clause,which often leads to the inconsistency of arbitral awards.In addition,the lack of a unified interpretation and appeal mechanism in international investment arbitration has led to the formation of a unified precedent for arbitration practice.The mistakes in international investment arbitral awards have not been corrected.This problem has also contributed to the inconsistency of the rulings and the final reaction to fairness and justice.The application of the terms of treatment.In addition,the latest practice of fair and equitable treatment in international investment arbitration reflects that it will face new situations and new problems when combined with new areas of international investment such as renewable energy and intellectual property rights.This is also the development of fair and equitable treatment provisions with the times.And the performance of dynamic evolution.The third chapter is another key chapter of this article.The content discussed in this chapter is to address the various applicable issues faced by the fair and equitable treatment clauses mentioned above in the practice of international investment arbitration,and to present the author's views with reference to relevant national reform measures.When considering the reform and improvement of the fair andequitable treatment clauses in BITs,the status and nature of the clauses should be clarified first.The essence of BITs is the consistent result of the two countries on the protection and promotion of investment.The principle of fairness and mutual benefit is The basic principles of international investment treaties,and the principle of fair and equitable treatment is the concrete expression of the principle of fairness and mutual benefit.The principle of fairness and mutual benefit is internalized as the principle of fair and equitable treatment in bilateral investment agreements.Firstly,the fair and equitable treatment clause is determined as the principle clause of the bilateral investment agreement,and then the more mature elements developed by the fair and equitable treatment clause in the long-term arbitration practice are specified,and a fair and equitable treatment clause of the bilateral investment agreement is constructed.The "principle + rules" double-layer structure.This is the measure that can best solve the current application of the fair and equitable treatment clause after analyzing and contrasting the reform path of the American positive enumeration clause elements and the European reverse enumeration clause elements.In addition,for the inconsistency of international investment arbitration awards,the international community tried to establish an international investment treaty appeal mechanism to solve the problem,and because the difficulty of establishing a unified multilateral level of the investment appeal mechanism is far greater than the establishment of a bilateral level of appeal mechanism,so first It is a good choice to try to establish an international investment appeal mechanism from the establishment of a bilateral investment treaty appeal mechanism.For this,the EU has taken the lead in treaty practice.The fourth chapter is about the fair and equitable treatment clause in China's bilateral investment agreement.This chapter is based on the concept of fair and equitable treatment clauses and its production and development process,and then analyzes the contradictions and problems arising from the application of the fair and equitable treatment clauses in current BITs.Based on these issues and the reform of the clauses of the international community The measures proposed the perfection of this article,and finally based on China,to conduct a more detailed analysis of the fairand equitable treatment clauses in China's bilateral investment agreements.This chapter first analyzes the legislative model of the fair and equitable treatment clauses in China's current bilateral investment agreements and the legislative characteristics reflected in it.Then it analyzes the shortcomings of the current legislation of the clause,such as fair and equitable treatment in China's bilateral investment agreements.The legislative model of the articles clearly shows that the legislators of China have insufficient understanding of the provisions of fair and equitable treatment and the understanding and interpretation of the clauses are not uniform.It also analyzes the risks China will face under the current status of such legislation.Finally,the foregoing article has concluded that the American positive-listing clause elements represented by the United States and the European-style negative enumeration clause elements cannot effectively solve the application dilemma of fair and equitable treatment clauses.Therefore,the article proposes a legislative structure of “principle+ rules” with fair and equitable treatment clauses.To resolve the current application dilemma.This chapter combines the legislative techniques with China's specific national conditions and the specific provisions of China's bilateral investment agreements,and proposes legislative improvements.The provisions on fair and equitable treatment are placed in the preamble of China's bilateral investment agreements,which are characterized as principles and then in the text.Partially stipulates the elements contained in it to form a two-tier structure that combines the principles of fair and equitable treatment of China's bilateral investment agreements with rules.In addition,China can follow the example of the EU,establish a bilateral investment appeal mechanism in bilateral investment agreements,and promote the unanimity of international investment arbitration awards.