中外贸易中最惠国条款权利要求分析

  Looking for better guidance for an adequate interpretation ofArticle 3 and the meaning of “treatment”,
寻找一些条约和条款，作为一个好的指导性方针进而来充分的解释其中第3条的内容，以此来为更好地指导和对待其中的一些富有歧义性的内容。
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:

作为一个负责谈判BIT条约中的工作人员，我对最惠国条款的范围的理解仅限于在该条文中所列的基本权利：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#分页标题#e#

然而，在这方面，法庭面临的问题需要进行解释的一般措词，分别是依据第3条，第8条的措辞。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.如果争端双方都同意，缔约任何一方以及缔约另一方的投资者之间关于其他事项的任何争议，都可提交该中心。

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，作为一个新的东道国和投资者之间的协议因素。