New Development Of Fair And Equitable Treatment And Its Impact On China

Fair and equitable treatment is widespread in international investment agreements.Among the various protection factors of international investment agreements,fair and just treatment has its unique and important status,and it is frequently cited in investor-state disputes with high success rate.Although,the wording of treatment is vague and broad.Many arbitral awards have interpreted the fair and equitable treatment so broadly.As the number of international investment agreements has increased year by year,new issues concerning the fair and equitable treatment have begun to emerge.Currently,some countries have adopted a variety of reforms to achieve certainty in the content of fair and equitable treatment.There are three main approaches: some countries delete fair and equitable treatment provisions in investment agreements.Some countries,such as the United States,have adopted an open-list approach that links the provisions of fair and equitable treatment with the minimum treatment standards of customary international law.The EU has adopted the method of close-list for fair and equitable treatment.Each of these methods has advantages and disadvantages.The vast majority of valid Chinese and foreign investment agreements include the fair and equitable treatment provisions,but there are shortcomings such as inconsistent wording and ambiguous expression.Although China has not yet involved in arbitrations concerning on fair and equitable treatment,the shortcomings in international investment agreements will bring potential risks to China.Based on the current situation in China,this paper takes into account the reforms of the treaty and the development of related arbitration cases in various countries,and proposes suggestions for improving the fair and equitable treatment provision of China.Except for the introduction and conclusions,this article consists of three chapters.The first chapter reviews the historical development of fair and equitable treatment.It also summarizes the recent developments in fair and equitable treatment in the practice of treaties and arbitration practices in some countries in the past 2 years.The second chapter analyzes the three main approaches for reforming the treatment clause in various countries,and discusses the shortcomings and development trends of these reform approaches.The third chapter summarizes the formulation of China's fair and equitable treatment provisions and analyzes the potential risks.Finally,from the general point of view to the determination of specific obligations,suggestions were made to improve China's fair and equitable treatment.