再论公平公正待遇条款--基于善意原则的分析

Revisiting the Fair and Equitable Treatment Clause:Based on the Good Faith Principle

公平公正待遇条款内涵宽泛、语义抽象,在实践中缺乏统一的适用标准,是东道国面临投资者滥诉和“规制寒蝉”的重要原因。学界曾提出用习惯国际法来限制仲裁庭对该条款的自由裁量,也提出过该条款的法律原则部分不可诉的主张。欧盟在国际协定中对该条款采取了规则化的改进措施。这些措施对弥补公平公正待遇条款的缺陷起到了积极作用,但该条款的法律解释仍然有进一步完善的空间。将善意原则适用于公平公正待遇条款的分析是仲裁庭常用的做法。但是,善意原则本身就具有含义不清、法律地位不明等问题,将该原则适用于同样具有一定模糊性的公平公正待遇条款,需要建立在二者清晰的法律关系和功能定位上,以防止使公平公正待遇条款的适用陷入更大的不确定性。公平公正待遇条款的法律适用可以结合善意原则的主观性与客观性,从程度的善意和通知义务的善意两个方面进行完善,以克服该条款法律适用的困境与风险。

The fair and equitable treatment clause has broad connotation,ab-stract semantics,and lack of uniform application standard in practice,which is an important reason for the host state to face excessive litigation and“regulatory chill”.Scholars have previously put forward the use of customary international law to limit the arbitral tribunal’s discretion on this article,and also uphold the claim that the legal principle of this article is not actionable.The European Union has adopted regularized measures to improve this article in international agreements.These measures have played a positive role in resolving the defects of the fair and equitable treatment clause,but there is still room for further improvement in the le-gal interpretation of the clause.The application of the principle of good faith to the analysis of fair and equitable treatment clauses is a common practice of arbi-tral tribunals.However,the principle of good faith itself has problems such as un-clear meaning and unclear legal status.The application of this principle to the fair and equitable treatment clause should be based on their clear legal relationship and functional orientation,so as to prevent the application of the fair and equitable treatment clause from falling into greater uncertainty.The legal application of the fair and equitable treatment clause can be improved by combining the subjectivity and objectivity of the principle of good faith,from the two aspects of degree good faith and good faith of notification obligation,so as to overcome the dilem-ma and risk of the legal application of this clause.