岔路口条款解释研究
发布时间：2018-08-29 16:19
【摘要】：自二战后,国际投资激增,带来了正反两方面影响。一方面,促进了国内经济的复苏与增长;另一方面,因海外投资环境复杂,风险较大,投资者经济利益无法保障。所以不少国家为了促进与保护海外投资,与他国签订了友好通商航海条约。后又在不断的实践中,为满足不同的利益需要,逐渐演变为签订国际投资条约。截至2014年,世界新增27个国际投资条约,全球国际投资条约总数已达3268个,其中双边投资条约2000多个。在海外投资过程中,基于缔约双方的不同利益考量,不可避免会产生纠纷。传统争端解决中往往规定以用尽当地救济为前提。但近年,以ICSID为首的国际仲裁庭在东道国与外国投资者争端解决中发挥重要作用。这意味着外国投资者不再以穷尽当地救济原则为必要。但为了节约诉讼资源成本,杜绝平行程序的风险,不少双边投资条约中都规定岔路口条款,择一终局,以限制外国投资者的选择权。现在,已有越来越多的国家签订的双边投资条约中都包含有岔路口条款,该条款渐渐成为国际投资争端解决的重要规范。但是在国际投资仲裁实践中,就该条款的适用产生了问题:不同仲裁庭在不同案件中对岔路口条款解释不一。分析近年来仲裁庭裁决的案例,对岔路口条款的解释方法主要有扩大解释、限制解释和实效解释。一般情况下,仲裁庭都是采用严格的限制解释的方法,只要提交给东道国国内法院与提交国际仲裁庭的争端双方当事人不同、诉因不同,就不认定是同一争端,因而在此模式下还未出现触动岔路口条款的案例。在扩大解释情形下,仲裁庭往往对双边投资条约中的宽泛词语进行扩大解释,Vivendi v.Argentina案即是最好证明。但是需要注意的是,Vivendi案仅是在理论上启动了岔路口条款,且仲裁庭进行与一般解读相悖的扩大解释也只是为了认同外国投资者的观点。无论是扩大解释抑或是限制解释,均能发现国际仲裁庭的倾向:维护外国投资者的利益,忽视东道国的主权利益。这就引发了不少东道国对国际仲裁庭的不满,仲裁正当性受到严重挑战。直到2009年,在Pantechniki S.A.ConterctorsEngineers(Greece)v.The Republic Of Albania案中,仲裁庭采用了实效解释方式,才第一次触动岔路口条款。因此,这在国际社会引发讨论的热潮,也致使不少国家重拾了对国际仲裁的信心。当然,究竟采用何种方式解释岔路口条款才是正确的、合理的,目前并无统一标准。随着“走出去”与“引进来”战略的加强,我国已由传统的东道国身份转变为东道国与投资母国兼具的身份。在双重身份情况下,我国双边投资条约的缔结与签订应当与此相符合。因此,在签订双边投资协定时,应当区分不同的国家,制定不同的双边投资条约,这些条约中或包括岔路口条款,或不包括该条款。同时,也应当意识到,国际仲裁庭对岔路口条款的不同解释,有些也是因为该条款本身规定的不严谨、不细致而引起的。因此,更应当对条款本身的含义、法律用语进行改进和完善,降低该条款被误解的几率。另外,我国投资条约发展历程表明,我国对国际仲裁庭管辖权的接受越来越趋于宽松,而这将给我国带来挑战。不管怎么说,不应完全放弃“四大安全阀”,否则危害无穷。除引言和结语外,本文共分为三章。第一章对岔路口条款做宏观介绍。首先就是介绍岔路口条款的概念以及产生的原因,即传统国际投资中,东道国坚持一旦发生争议,首先寻求用尽当地救济;而投资者更希望将争议提交国际仲裁进行裁决,因为投资者害怕东道国法院偏袒东道国,从而损害投资者的自身利益。后来,东道国与投资者各退一步,可以由外国投资者选择将争端递交给国内法院或国内仲裁,也可选择提交国际仲裁庭进行仲裁,但是二者只能选一,且择一终局,这就是岔路口条款。其次,介绍世界典型国家对岔路口条款的表述,分析岔路口条款的适用条件。第二章就ICSID仲裁庭针对岔路口条款做出裁决的实践进行法律评析。首先,就国际仲裁庭一般采用的条约解释方法做简要介绍。其次,将国际仲裁庭对岔路口条款做出的解释方法进行分类,介绍典型案例。案例包括Tza Yap Shum v.Republic of Peru案,Vivendi v.Argentina案,Hulley enterprises limited(CYPRUS)v.The Russian Federation案,Azurix v.Argentina案,Pantechniki S.A.ConterctorsEngineers(Greece)v.The Republic Of Albania案和Toto Costruzioni Generali S.P.A.v.Republic Of Lebanon案,分析仲裁庭在决定是否适用岔路口条款上,是如何解释岔路口条款。然后,对仲裁庭的解释做出评析,分析仲裁庭解释是否合理以及笔者支持的解释方法。探究仲裁庭严苛解释岔路口条款的可能原因。第三章针对我国双边投资条约的现状及岔路口条款现状做优缺点分析。在分析基础上,对我国双边投资条约的修订建言献策。比如细致规定岔路口条款的解释,规范岔路口条款语言表述。对ICSID管辖权实行全面同意加重大例外的原则。在建议的基础上,针对我国情况提出一些可行的对策。比如对岔路口条款解释进行规范;借鉴美国BIT的交易本据方法;对ICSID管辖权实行全面同意加重大例外原则;慎用岔路口条款或者不适用岔路口条款;密切关注ICSID仲裁庭的裁决,就裁决对我国不利的地方进行研究,提出应对方法。
[Abstract]:Since World War II, the surge of international investment has brought about both positive and negative effects. On the one hand, it has promoted the recovery and growth of the domestic economy; on the other hand, the economic interests of investors can not be guaranteed because of the complex and risky overseas investment environment. As of 2014, 27 new international investment treaties have been added to the world. The total number of international investment treaties has reached 3 268, including more than 2 000 bilateral investment treaties. However, in recent years, international arbitral tribunals headed by ICSID have played an important role in the settlement of disputes between the host country and foreign investors. This means that foreign investors are no longer necessary to exhaust local remedies. However, in order to save litigation resources costs and eliminate them, the ICSID-led international arbitral tribunal has played an important role in the settlement of disputes between the host country and foreign investors. Many bilateral investment treaties have stipulated fork-off clauses to restrict foreign investors'options. Now, more and more countries have signed bilateral investment treaties containing fork-off clauses, which have gradually become an important norm for the settlement of international investment disputes. In the practice of arbitration, problems arise in the application of this clause: different arbitral tribunals have different interpretations of the fork-off clause in different cases. This paper analyzes the cases awarded by the arbitral tribunal in recent years, and mainly explains the fork-off clause by expanding the interpretation, limiting the interpretation and effective interpretation. As long as the disputes submitted to the domestic courts of the host country are different from those submitted to the international arbitral tribunal and the causes of action are different, the same dispute will not be recognized as the same one, so there is no case of clauses touching a fork in this mode. The Vivendi v. Argentina case is the best proof of the interpretation. However, it should be noted that the Vivendi case only initiated the fork-and-corner clause in theory, and that the arbitral tribunal conducted an expanded interpretation contrary to the general interpretation only in order to agree with the views of foreign investors. Tendency: to safeguard the interests of foreign investors, ignoring the sovereign interests of the host country. This has led to the dissatisfaction of many host countries with the international arbitral tribunal, which has seriously challenged the legitimacy of arbitration. As a result, this has aroused a heated discussion in the international community, and many countries have regained confidence in international arbitration. Of course, there is no uniform standard on how to interpret the fork-off clause. In the case of dual identity, the conclusion and signing of bilateral investment treaties in China should accord with it. Therefore, when signing bilateral investment agreements, different countries should be distinguished and different bilateral investment treaties should be formulated, which may include forks. At the same time, we should also realize that the different interpretations of the fork-off clause by the international arbitral tribunal are also caused by the imprecise and careless provisions of the clause itself. Therefore, the meaning of the clause itself and the legal terms should be improved and perfected to reduce the probability of misunderstanding of the clause. The development of CIT shows that China's acceptance of the jurisdiction of the International Arbitration Tribunal is becoming more and more relaxed, which will bring challenges to China. In any case, the "four safety valves" should not be completely abandoned, otherwise the harm will be endless. In traditional international investment, the host country insists on exhausting local remedies in case of disputes, and investors prefer to refer the disputes to international arbitration for adjudication, because investors fear that the court of the host country will favor the host country, thus harming the interests of investors themselves. Later, the host country and the investor take a step backwards each. The foreign investor can choose to submit the dispute to the domestic court or domestic arbitration, or to the international arbitration tribunal for arbitration. But the two can only choose one, and choose the final one. This is the fork-off clause. Secondly, it introduces the expressions of the typical countries in the world on the fork-off clause and analyzes the fork-off. Chapter 2 makes a legal review of the ICSID arbitral tribunal's practice in awarding the fork-off clause. First, it gives a brief introduction to the general methods of treaty interpretation adopted by the international arbitral tribunal. Secondly, it classifies the interpretation methods of the fork-off clause by the international arbitral tribunal and introduces typical cases. A Yap Shum v. Republic of Peru, Vivendi v. Argentina, Hulley Enterprises limited (CYPRUS) v. The Russian Federation, Azurix v. Argentina, Pantechniki S. A. ConterctorsEngineers (Greece) v. The Republic of Albania and Toto Costruzioni General S. P. A. V. Republic of Lebanon, the Analytical Arbitration Tribunal made its decision. Then, it makes a comment on the interpretation of the arbitral tribunal, analyzes the reasonableness of the interpretation of the arbitral tribunal and the interpretation methods supported by the author. It explores the possible reasons for the arbitral tribunal's harsh interpretation of the fork terms. Chapter III focuses on the status quo of China's bilateral investment treaties and fork terms. On the basis of the analysis, this paper gives some suggestions on the revision of BIT in China, such as the detailed interpretation of the terms of fork road and the standardization of the language expression of the terms of fork road. We should standardize the interpretation of fork-road clauses, draw lessons from BIT's method of transaction evidence, apply the principle of full consent aggravating major exception to ICSID jurisdiction, carefully use fork-road clauses or do not apply fork-road clauses, pay close attention to the ICSID arbitration tribunal's rulings, and study the unfavorable areas of the rulings in our country and put forward countermeasures.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D996.4
[Abstract]:Since World War II, the surge of international investment has brought about both positive and negative effects. On the one hand, it has promoted the recovery and growth of the domestic economy; on the other hand, the economic interests of investors can not be guaranteed because of the complex and risky overseas investment environment. As of 2014, 27 new international investment treaties have been added to the world. The total number of international investment treaties has reached 3 268, including more than 2 000 bilateral investment treaties. However, in recent years, international arbitral tribunals headed by ICSID have played an important role in the settlement of disputes between the host country and foreign investors. This means that foreign investors are no longer necessary to exhaust local remedies. However, in order to save litigation resources costs and eliminate them, the ICSID-led international arbitral tribunal has played an important role in the settlement of disputes between the host country and foreign investors. Many bilateral investment treaties have stipulated fork-off clauses to restrict foreign investors'options. Now, more and more countries have signed bilateral investment treaties containing fork-off clauses, which have gradually become an important norm for the settlement of international investment disputes. In the practice of arbitration, problems arise in the application of this clause: different arbitral tribunals have different interpretations of the fork-off clause in different cases. This paper analyzes the cases awarded by the arbitral tribunal in recent years, and mainly explains the fork-off clause by expanding the interpretation, limiting the interpretation and effective interpretation. As long as the disputes submitted to the domestic courts of the host country are different from those submitted to the international arbitral tribunal and the causes of action are different, the same dispute will not be recognized as the same one, so there is no case of clauses touching a fork in this mode. The Vivendi v. Argentina case is the best proof of the interpretation. However, it should be noted that the Vivendi case only initiated the fork-and-corner clause in theory, and that the arbitral tribunal conducted an expanded interpretation contrary to the general interpretation only in order to agree with the views of foreign investors. Tendency: to safeguard the interests of foreign investors, ignoring the sovereign interests of the host country. This has led to the dissatisfaction of many host countries with the international arbitral tribunal, which has seriously challenged the legitimacy of arbitration. As a result, this has aroused a heated discussion in the international community, and many countries have regained confidence in international arbitration. Of course, there is no uniform standard on how to interpret the fork-off clause. In the case of dual identity, the conclusion and signing of bilateral investment treaties in China should accord with it. Therefore, when signing bilateral investment agreements, different countries should be distinguished and different bilateral investment treaties should be formulated, which may include forks. At the same time, we should also realize that the different interpretations of the fork-off clause by the international arbitral tribunal are also caused by the imprecise and careless provisions of the clause itself. Therefore, the meaning of the clause itself and the legal terms should be improved and perfected to reduce the probability of misunderstanding of the clause. The development of CIT shows that China's acceptance of the jurisdiction of the International Arbitration Tribunal is becoming more and more relaxed, which will bring challenges to China. In any case, the "four safety valves" should not be completely abandoned, otherwise the harm will be endless. In traditional international investment, the host country insists on exhausting local remedies in case of disputes, and investors prefer to refer the disputes to international arbitration for adjudication, because investors fear that the court of the host country will favor the host country, thus harming the interests of investors themselves. Later, the host country and the investor take a step backwards each. The foreign investor can choose to submit the dispute to the domestic court or domestic arbitration, or to the international arbitration tribunal for arbitration. But the two can only choose one, and choose the final one. This is the fork-off clause. Secondly, it introduces the expressions of the typical countries in the world on the fork-off clause and analyzes the fork-off. Chapter 2 makes a legal review of the ICSID arbitral tribunal's practice in awarding the fork-off clause. First, it gives a brief introduction to the general methods of treaty interpretation adopted by the international arbitral tribunal. Secondly, it classifies the interpretation methods of the fork-off clause by the international arbitral tribunal and introduces typical cases. A Yap Shum v. Republic of Peru, Vivendi v. Argentina, Hulley Enterprises limited (CYPRUS) v. The Russian Federation, Azurix v. Argentina, Pantechniki S. A. ConterctorsEngineers (Greece) v. The Republic of Albania and Toto Costruzioni General S. P. A. V. Republic of Lebanon, the Analytical Arbitration Tribunal made its decision. Then, it makes a comment on the interpretation of the arbitral tribunal, analyzes the reasonableness of the interpretation of the arbitral tribunal and the interpretation methods supported by the author. It explores the possible reasons for the arbitral tribunal's harsh interpretation of the fork terms. Chapter III focuses on the status quo of China's bilateral investment treaties and fork terms. On the basis of the analysis, this paper gives some suggestions on the revision of BIT in China, such as the detailed interpretation of the terms of fork road and the standardization of the language expression of the terms of fork road. We should standardize the interpretation of fork-road clauses, draw lessons from BIT's method of transaction evidence, apply the principle of full consent aggravating major exception to ICSID jurisdiction, carefully use fork-road clauses or do not apply fork-road clauses, pay close attention to the ICSID arbitration tribunal's rulings, and study the unfavorable areas of the rulings in our country and put forward countermeasures.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D996.4
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