中外貿易中最惠國條款權利要求分析

  Looking for better guidance for an adequate interpretation ofArticle 3 and the meaning of “treatment”,
尋找一些條約和條款，作為一個好的指導性方針進而來充分的解釋其中第3條的內容，以此來為更好地指導和對待其中的一些富有歧義性的內容。
the Tribunal, in accordancewith the instructions in Article 32 of the Vienna Convention, hasexamined the evidence produced by Respondent whereby heintends to prove that the preparatory work and the circumstancessurrounding the conclusion of the Peru-China BIT confirm that thepurpose of the Contracting Parties was to restrict the scope of theMFN clause rather than extending the scope of the disputesettlement clause. For example, Mr. Fan, who as mentioned earlierwas one of the Chinese representatives to the negotiation, statedthat:

作為一個負責談判BIT條約中的工作人員，我對最惠國條款的范圍的理解僅限于在該條文中所列的基本權利：As a person responsible for negotiating the BIT, Iunderstood that the scope of the MFN clause waslimited to the essential rights listed in the clause: fairand equitable treatment, and protection of investmentin the territory of the other contracting state.http://ukthesis.org/dissertation_sample/

Similarly, Ms. Vega, one of the most important peopleresponsible for the negotiation on behalf of Peru, declared that: “[…]the parties did not discussed the possible application of the MFNclause in order to invoke dispute settlement provisions included intreaties with third States

Ms. Vega also stated that she considered that it would beillogical to start arguing on this matter with Chinese representativesdue to: (1) the efforts made by Peru and China in the negotiationson the dispute settlement clause; and (2) the categorical position ofthe Chinese Government with regard to the types of disputes thatcould be submitted to international arbitration.(150)while the Tribunalunderstand the logic of Ms. Vega's opinion on this matter, theTribunal does not consider that this statement is a convincingevidence of a common agreement on the matter, or of an intention of the Contracting Parties with regard to the scope of this MFNclause.

The analysis of the Tribunal indicates, preliminarily, that thewording of Articles 3(1) and 3(2), in accordance with its ordinarymeaning and having considered it in the light and purpose of theBIT, they do not seem to restrict the scope of the word “treatment” tosuch significant commercial matters as exploitation and investmentmanagement. In addition, the Tribunal has not found in the file of thecase any evidence that the Contracting Parties have had theintention to give the term “treatment” a “special meaning”.(151)Thewording of the MFN clause itself seem to be opened to a broaderinterpretation, which may include access to procedure protectionsmore favourable (which would potentially include ICSID arbitration)for alleged violations of the fair and equitable treatment principle.#p#分頁標題#e#

然而，在這方面，法庭面臨的問題需要進行解釋的一般措詞，分別是依據第3條，第8條的措辭。However, in this regard, the Tribunal faces the problem ofinterpreting the general wording of Article 3 as related to the wordingof Article 8(3), which directly addresses the scope of disputes that aChinese or Peruvian investor may submit to ICSID arbitration. Here,the Tribunal faces a significant difficulty. As indicated earlier, Article8(3) provides as follows:

If a dispute involving the amount of compensation forexpropriation cannot be settled within six months afterresort to negotiations […] it may be submitted at therequest of either party to the international arbitration ofthe […] ICSID, established by the Convention […] [of]Washington. Any disputes concerning other mattersbetween an investor of either Contracting Party andthe other Contracting Party may be submitted to theCentre if the parties to the dispute so agree.如果爭端雙方都同意，締約任何一方以及締約另一方的投資者之間關于其他事項的任何爭議，都可提交該中心。

As it can be noticed by a simple reading, Article 8(3) of the BITis a rather restrictive provision, which only allows submitting tointernational arbitration disputes which, for simplicity purposes, willbe referred to as “expropriation disputes”(153)or, otherwise, that areexpressly accepted by the parties (“[…] if the parties to the disputeso agree”), for example as an element of a new agreement betweenthe host State and the investor.例如，作為一個新的東道國和投資者之間的協議因素。