A Study On The Application Criteria Of Fair And Equita Ble Treatment Provisions In International Investment A Greement

Fair and equitable treatment is explicitly contained in most international investment treaties and has been invoked for a long time as an important basis for international investment arbitration.However,in the practice of international investment clauses,the provisions of fair and equitable treatment in the treaties are not consistent,and the fair and equitable treatment clauses are mainly regulated in the way of independent provisions and combined with other treatments,limited by different legislative techniques,some fair and equitable treatment clauses are simple and abstract,while some are full and specific,and even behind the different ways of setting the clauses,there is a game and balance of interests between the parties to international treaties.The game and balance of interests between the Considering the importance of the fair and equitable treatment clause in every international investment agreement,it remains a very important issue in today’s investment practice to adopt a correct understanding of the "fair and equitable treatment" standard on the basis of balancing the interests of both investor protection and host country sovereignty.There is an inherent confusion in the system of fair and equitable treatment provisions,and different treaties have different approaches as to whether to provide for fair and equitable treatment provisions as independent foreign investment treatment provisions,and there are also different trade-offs as to whether to combine them with international minimum treatment standards,or to adopt either open or closed list enumeration.Although FET is not further defined in some agreements,it has given rise to a series of subordinate concepts to protect the interests of foreign investors in various aspects,but there is a lack of legal certainty about these subordinate concepts,and there is no IIA that precisely defines the connotation of these subordinate concepts.There is no IIA that defines the precise meaning of these subordinate concepts,nor is there an IIA that provides a definitive formulation of these subordinate concepts.Specifically,in arbitration practice,arbitral tribunals have different approaches to the interpretation of fair and equitable treatment by equating it with the international minimum standard of treatment and applying it separately under treaty interpretation,and there is also a trade-off between the interests of protecting the rights and interests of investors and the regulatory power of the host country.Many of the aforementioned problems in reality are likely to jeopardize the policy planning of foreign investors in the process of promoting sustainable development and the continued development of the overall state of international investment.The realities of international investment law dictate that a highly consistent interpretive outcome cannot be achieved in dispute resolution.In this regard,instead of generalized criticism or excessive pursuit of highly uniform interpretation results in the process of future institutional reform,an objective distinction should be made between the reasonableness of the phenomenon of inconsistent treaty interpretation,and through the dual path of refining the text of IIAs provisions and improving the ISDS mechanism,the discretionary space of arbitral tribunals should be limited while ensuring the accuracy of treaty interpretation,and the true intentions of the The real intention of the contracting parties.Although the scope of protection of fair and equitable treatment is broader and the threshold of application is lower,when the fair and equitable treatment clause links the international minimum standard of treatment,it is also possible to judge the reasonableness of the host country’s conduct through the international minimum standard of treatment.The adoption of a closed list restricts the connotation of procedural and substantive subordinate concepts of fair and equitable treatment,reduces the unpredictability in the application of fair and equitable treatment,and gives full play to the positive interaction between legal provisions and arbitration practice.Considering the lack of understanding of the fair and equitable treatment clause in China,the arbitrariness of the fair and equitable treatment clause and the lack of clear interpretation standards of the fair and equitable treatment clause,it is suggested that China can strive to adhere to the lower position in the negotiation of international investment treaties in the future.The concept of the closed list of the way,or in the case of conditions in accordance with the above way to amend international investment agreements and correspondingly increase the "investor responsibility" clause,to reduce the risk of abusive lawsuits by foreign investors in China or even lose the lawsuit.For Chinese investors going abroad,it is recommended to strengthen due diligence before investment,obtain written commitment from the host country and pay attention to legal compliance in the process of operation.