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公正与公平待遇条款是由作为资本输出国的发达国家主张的公平待遇条款发展而来的。作为绝对待遇标准,公正与公平待遇被认为是对投资者提供的核心保护,几乎所有的双边投资条约都规定了该标准。很多学者认为公正与公平待遇已经发展成为习惯国际法规则;但大多数发展中国家的学者反对这种观点,认为公正与公平待遇尚未达到习惯国际法规则所要求的国家实践和法律确信。本文试图从公正与公平待遇的发展历程、内容以及与最低待遇的关系三个方面论证该待遇的习惯国际法特性,针对各方的立场提出自己的观点,认为公正与公平待遇很有可能正在形成甚至已经形成了习惯国际法规则。
The terms of fair and equitable treatment have evolved from the terms of fair treatment advocated by the developed countries that are the capital-exporting countries. As a measure of absolute treatment, fair and equitable treatment is considered to be the core protection afforded to investors and is regulated by almost all BITs. Many scholars believe that fairness and fairness have developed into rules of customary international law; however, most developing country scholars are opposed to the view that fair and equitable treatment has not yet reached the national practical and legal conviction required by the rules of customary international law. This article attempts to demonstrate the characteristics of customary international law of the treatment from three aspects of the course of development of justice and fair treatment, the content and the relationship with the minimum treatment. According to the position of all parties, I put forward my own view that fair and equitable treatment is likely to form even Has formed the rules of customary international law.