BIT條約中的最惠國待遇條款規定辦法

 In short, having examined the argument and evidence, thedecision of this Tribunal needs establish the objective meaning ofArticle 8 in the overall context of the BIT. 總之，法庭決定的這些研究的論點和證據，都需要建立在客觀意義上的總體背景下的BIT中的第8條條約下。
As indicated in thePreamble, as remarked by Claimant, the objective of the BITconsisted in increasing the flow of private investment between bothContracting Parties. In this context, the wording of Article 8(2), whichindicates that either party shall be entitled to submit any dispute “tothe competent court of the Contracting Party” may be consideredunnecessary as it seems that the right of an investor of eithercountry to turn to the courts of the host State had already existedboth in China and Peru. If the affected party would be interestedonly in establishing its rights under the laws of the host State, thewording of the treaty would seem to have been 根據東道國的法律，如果受影響的一方對此有興趣的話，可以建立自己的權利，該條約的措辭可以應用在這個地方。unnecessary.Notwithstanding, the use of bilateral investment treaties has thrivedas, to a lesser or greater extent, they extend the rights and protections of investors, both in content and form, by theincorporation of protections of international law.http://ukthesis.org/dissertation_writing/Law/

   The Tribunal concludes that to give meaning to all theelements of the article, it must be interpreted that the words“involving the amount of compensation for expropriation” includesnot only the mere determination of the amount but also any otherissues normally inherent to an expropriation, including whether theproperty was actually expropriated in accordance with the BITprovisions and requirements, as well as the determination of theamount of compensation due, if any.(119)In opinion of the Tribunal, acontrary conclusion would invalidate the provision related to ICSIDarbitration since according to the final sentence of Article 8(3),turning to the courts of the State accepting the investment wouldpreclude definitely the possibility choosing arbitration under theICSID Convention. Consequently, since the Claimant has filed aprima facie claim of expropriation, the Tribunal, pursuant to Articles25 and 41 of the ICSID Convention and Rule 41 of the ArbitrationRules, considers that it is competent to decide on the merits of theexpropriation claim filed by Claimant.

The most favoured nation clause of the BIT may not be usedto broaden the scope of the ICSID arbitration agreed under theTreaty .
在BIT條約中的最惠國待遇條款，可能已經超過了多個國家所認同的“條約”規定的國際投資爭端解決中心仲裁的范圍。

The position of the Parties189. Claimant has argued that the jurisdiction of the ArbitralTribunal comes from two sources:(120)  on the one hand, Article 8 ofthe Peru-China BIT, which allows the Tribunal to decide on disputesrelated to expropriation of investments; and   on the other hand,Article 3(1) of the BIT, which states the principle that the investors ofthe Contracting Parties should be given fair and equitable treatmentunder the most favoured nation (“MFN”) clause contained in Article 3(2) thereof.#p#分頁標題#e#

 With regard to this second source of jurisdiction, what theClaimant ultimately alleges is that Peru has signed other BITs whichallows the submission of any disputes between the investor and thehost State to ICSID arbitration.(121). Claimant believes that the sametreatment must also be extended to disputes related to violations tofair and equitable treatment, as well as to protection in the territory infavour of a Chinese investor, as required by the MFN clause in thePeru-China BIT.申訴人認為，同樣的待遇也必須擴展到相關的違反公正和公平的待遇的領域，以及用來保護中國投資者，所要求的需要在秘魯中國的BIT條約中最惠國條款下的領土糾紛的問題。

For that purpose, Claimant correctly invokes Article 12 of thePeru-Colombia BIT.(122)Claimant believes this provision provides amost favourable treatment to Colombian investors, as in disputes onfair and equitable treatment, protection and other standards ofinternational liability allow investors to file directly with ICSID a claimagainst the Peruvian State.(123)Claimant then alleges that, byapplying Article 3(2) of the BIT, the Peru-Colombia BIT must beextended to a Chinese investor's claim under the Peru-China BITwith the consequence that he is entitled to submit to the Arbitral 。 

Tribunal not only disputes related to expropriation, but also disputesrelated to protection and fair and equitable treatment.192. Respondent has challenged Claimant's claim.(124)Essentially,Respondent argues that the BIT is in full force, with no amendmentsthereto whatsoever, and that the consent between China and Peruto submit disputes to arbitration is limited to the issues related toexpropriation mentioned in Article 8(3) of the BIT.(125)To the extentthat the dispute brought by the Claimant is out of the scope definedby this provision, there is no consent between the ContractingParties for the dispute to be settled by arbitration and, as aconsequence, the ICSID lacks jurisdiction and the Tribunal,competence.