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公平公正待遇已经成为投资者对东道国提起国际仲裁的主要依据。在2014年6月结束的中美BIT第13轮谈判中,公平公正待遇也成为双方的谈判焦点,双方的分歧主要集中在国际投资法领域是否存在习惯国际法、公平公正待遇与习惯国际法上的最低待遇原则的关系、是否需要具体列举公平公正待遇的具体要素以及应当列举哪些要素等问题上。本文拟针对上述分歧、结合国际投资仲裁相关实践,对公平公正待遇的具体要素作一简要分析。
Fair and equitable treatment has become the main basis for investors to bring international arbitration to host countries. At the conclusion of the 13th BIT Sino-U.S. BIT negotiations concluded in June 2014, fair and equitable treatment has also become the focus of negotiations between the two sides. The differences between the two sides mainly focus on the existence of customary international law, fair and equitable treatment and customary international law in international investment law. The relationship between the principle of treatment, the need to specifically list the specific elements of fair and equitable treatment and what elements should be listed. This article is intended to address the above differences, combined with relevant international investment arbitration practice, the specific elements of fair and equitable treatment to make a brief analysis.