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公正与公平待遇标准是国际投资协定中普遍采纳的一项投资待遇标准,但是不同的国家和学者对该标准的含义一直存在观点分歧。《北美自由贸易协定》生效后,依据该协定第11章投资规则提起的仲裁案例不少,该标准成为国际投资条约中最具争议的问题之一。上述仲裁案例直接促使公正与公平待遇标准在晚近有了重大的发展。美国与加拿大两国对各自的双边投资条约新范本作出了重大的修改,并根据新范本开展了新一轮的国际投资条约谈判计划。本文重点评介公正与公平待遇标准的新内容,并进而探求公正与公平待遇标准的新发展的特点与深层次原因。本文还剖析了中国所缔结的双边投资条约中的公正与公平待遇条款存在的问题及可能给中国带来的潜在风险,并根据中国自身的特点,明确对公正与公平待遇的定位,进而提出全面的应对策略。
The standard of fair and equitable treatment is a standard of investment treatment generally accepted in international investment agreements, but different countries and scholars have always had different opinions on the meaning of the standard. Since the entry into force of the North American Free Trade Agreement, there have been quite a few cases of arbitration under the Chapter 11 investment rules of the agreement, which has become one of the most controversial issues in international investment treaties. The above arbitration cases have led directly to the recent significant developments in the standard of fair and equitable treatment. The United States and Canada made major changes to their new model bilateral investment treaties and launched a new round of negotiation on international investment treaties based on the new model. This article focuses on the introduction of new content of fair and equitable treatment standards, and then explores the characteristics and deep-seated reasons for the new development of fair and equitable treatment standards. The article also analyzes the existing problems of the fair and equitable treatment clause in the bilateral investment treaties concluded by China and potential risks to China. Based on China’s own characteristics, it also clarifies the orientation of fair and equitable treatment, and then proposes a comprehensive Coping strategies.