国际最低待遇标准的新发展:表现、效果及应对

The New Development of International Minimum Standard of Treatment: Expression,Effect and Response

国际最低待遇标准自诞生以来就始终与国民待遇交织在一起,并以限制国民待遇为目的。进入21世纪后,国际最低待遇标准出现了新发展,除了继续限制国民待遇外,其开始在国际投资法领域发挥限制高水平投资保护标准的作用。然而这一新发展并没有得到国际投资仲裁实践的肯定,从而实际上并没有发挥应有的限制效果。针对这一问题,我国可以借鉴美国经验在投资仲裁实践中主张国际最低待遇标准并没有向前演进,而是冻结在尼尔案确定的标准上;同时在对外签订的国际投资条约中明确国际最低待遇标准的内容或指向。

International Minimum Standard of Treatment（ ＂MST＂） has a close relationship with National Treatment since its emergence. The purpose of this treatment is to limit the application of the National Treatment. Apart from continuously limiting the application of the National Treatment,the MST has experienced new development in the 21 st century,which began to limit the high level of investment protection standard in the field of international investment law. However,such kind of development was not affirmed by international investment arbitration. And because of this,the MST did not have good effects in limitation of the National Treatment practically as it should be. Concerning this issue,China can take America＇experience as lessons,and advocate that the MST has not evolved in the practice of international investment arbitration at all. That is to say the treatment should be frozen in the Neer Standard. And at the same time,China should make a clear statement about the content and the direction of the MST,when signing international investment treaties.