公平公正待遇限制下的國內法：對絕對待遇標準的再反思

Domestic Law under the Constraints of Fair and Equitable Treatment: Rethinking the Absolute Standard of Treatment

由於投資協定中公平公正待遇條款的抽象性等特徵，投資仲裁庭如何解釋該條款成為國際投資法領域長期存在的難題。歷史上，投資仲裁庭對於公平公正待遇條款任意的、不一致的解釋和應用，導致該條款未能有效發揮對國內法的監督改善作用，反而阻礙了東道國規制權的合理行使，同時也對國際投資領域的良法善治造成了破壞。但東道國並非完全是公平公正待遇條款的被動接受者，由於國際投資法的社會嵌入性特徵，在公平公正待遇條款的訂立與實踐過程中也可以觀測到東道國國內法的反向輸出。本文致力於從仲裁庭對公平公正待遇的合法解釋、國內法在國際投資仲裁中應當享有的地位以及東道國如何合法行使規制權等三個維度，重新思考絕對待遇標準下國內法的定位，探索公平公正條款與東道國規制權的合理關係，從而促進公平公正待遇條款真正發揮維護投資法治的作用。

Due to the abstract nature of the fair and equitable treatment clause in investment agreements, how to interpret the clause by investment arbitral tribunals has become a long-standing problem. Historically, investment arbitral tribunals have interpreted and applied fair and equitable treatment arbitrarily and inconsistently, resulting in the failure of fair and equitable treatment to effectively supervise and improve domestic laws, and instead hinder the reasonable exercise of the host states' regulatory power. Good laws and good governance in the area of international investment have thus been wreaked havoc. However, the host state is not completely a passive recipient of the fair and equitable treatment clause. Due to the social embeddedness of international investment law, in the process of formulating and practicing the fair and equitable treatment clause, it can also be observed that the domestic law of the host state impacts the fair and just treatment clause. This paper is dedicated to rethinking the position of domestic law under the standard of absolute treatment from three dimensions: the legal interpretation of fair and equitable treatment by the arbitral tribunal, the status that domestic law should enjoy in international investment arbitration, and how the host state legally exercises its regulatory power. This paper explores the reasonable relationship between fair and equitable treatment clauses and the regulatory power of the host state, and seeks path that the promotion of fair and equitable treatment clauses can really play a role in maintaining the rule of law in investment.