中秘雙方簽訂爭端條約的必要性分析-law Thesis

 Peru and China have also signed and ratified many other BITsthat include the commitment to accord fair and equitable treatmentand protection to the investment, which also contain provisions ondispute settlement including “any dispute” that may arise thereunder.
秘魯和中國l兩方也簽署和批準(zhǔn)了許多條約，其中包括承諾給予公平和公正的的條件來保護(hù)商人的投資，這其中也包含關(guān)于解決爭端的規(guī)定，包括“任何爭端”，這些都能依據(jù)這些條約來解決。

 Article 3(1) of the Peru-China BIT specifically accordsinvestors of both Contracting Parties the benefits of “fair andequitable treatment” and “protection” in the territory of the otherContracting Party. Article 3(2) in turn provides that “the treatmentand protection referred to in Paragraph 1 of this Article shall not beless favourable than that accorded to investments and activitiesassociated with such investments of investors of a third State.”

這些情況無論是站在原告或者被告雙方的立場上，都是會出現(xiàn)了以下問題：These circumstances and both Respondent's and Claimant'spositions arise the following issues: the interpretation rules of theMFN clauses, the interpretation of the clause to determine theintention of the Contracting Parties as reflected by the wording of theclause and, in particular, if the “treatment” accorded to foreigninvestors mentioned in Article 3 of the BIT regarding the allegedviolation of the fair and equitable treatment principle may beinterpreted so as to include the broader provisions on ICSIDarbitration established by ulterior BITs. The Tribunal shall analyseeach of these questions below.法庭應(yīng)分析以下這些問題。

作為第一步，該法庭又比較依賴于“維也納公約”，其中參考的是國際條約的規(guī)定“的第31條As a first step, the Tribunal again relies on Article 31 of theVienna Convention, which establishes that an international treatyshall be:interpreted in good faith in accordance with theordinary meaning to be given to the terms of the treatyin their context and in the light of its object andpurpose.206. As mentioned above, both the Vienna Convention and thedecisions of the International Court of Justice emphasise that “whatmatters is the intention of the parties expressed in the text, which isthe best indicator of the most recent common intention of theparties”(144)In addition, as it has already been mentioned, theTribunal understands that the Vienna Convention does not establisha different interpretation rule for the different clauses of the treaties.http://ukthesis.org/dissertation_writing/Law/

Article 3 of the BIT does not expressly include or exclude thesettlement of disputes. Article 3(3), however, lists a number ofspecific exceptions to the treatment established in Articles 3(1) and3(2), i.e. any preferential treatment accorded based on “customsunion, free trade zone, economic unions, [or] agreement relative to avoidance of double taxation or for facilitating frontier trade.” Ageneral aspect of the interpretation is that mentioning explicitly thespecific exceptions, implies that there are other matters that havenot been excluded specifically “expression unius est exclusionalterius”(146)This rule provides certain clarity to the Tribunal althoughthis is just the beginning of the story.）本規(guī)則向法庭提供了關(guān)于復(fù)雜事物的清晰度的問題，雖然這僅僅只是問題的開始。#p#分頁標(biāo)題#e#

As we examine the terms of this BIT “in its context” and “in thelight of its object and purpose”, the Tribunal has referred to thePreamble thereof, which makes it clear that the agreed purpose ofboth Contracting Parties was to stimulate investment and increaseprosperity. The term “context”, in accordance with the ViennaConvention includes, in addition to the Preamble and annexes:(a) any agreement relating to the treaty which was made betweenall the parties in connection with the conclusion of the treaty;(b) any instrument which was made by one or more parties inconnection with the conclusion of the treaty and accepted bythe other parties as an instrument related to the treaty.

The Tribunal has not found on the records none of thein struments mentioned in Article 31.
該法庭還沒有找到在第31條記錄所述的一些條款。