國際貿(mào)易法英文版雙語教學(xué)課件Chapter23

1、Chapter 23 Settlement of International Investment Disputes Chapter 23 Settlement of InterTwo Important Doctrines in International Investment International Treaty Rights for the Foreign Investor ICSID Arbitration Standard of Investment Protection Major Problems of Dispute Settlement in International

2、Investment 目錄Two Important Doctrines in IntTwo Important Doctrines in International Investment 01Two Important Doctrines in IntA .Foreign Sovereign Immunity and Foreign Investment It is generally recognized that state governments benefit from sovereign immunity to the jurisdiction of U .S .or other

3、foreign courts .In many countries ,there are exceptions to sovereign immunity for some kinds of acts .In the United States ,for example ,the Foreign Sovereign Immunities Act ( FSIA)permits U .S .courts to assert jurisdiction over foreign sovereigns under limited circumstances in cases relating to co

4、mmercial activities and acts of expropriation by the foreign state or its agents .Practically ,U .S .courts have jurisdiction in an action against a foreign sovereign only if the expropriated property or any property ex - changed for such property is present in the United States in connection with a

5、 commercial activity carried on in the United States by the foreign state ,or when the property is ex - changed in a commercial activity in the United States . A .Foreign Sovereign Immunity B .Act of State Doctrine and Foreign Investment 65percent82percent44percent73percentDesignersDevelopersManager

6、sSEOThe Act of State Doctrine states that every sovereign state is bound to respect the in - dependence of every other sovereign state ,and the courts will not sit in judgment of an - other governments acts done with its own territory .The doctrine is not required by inter - national law ( neither c

7、ustomary international law nor treaty law ),but is a principle recognized and adhered to by United States federal and state courts .In the United States ,the rationales for the doctrine include respect for other nations sovereignty and protection of the U .S .Executives prerogative in foreign affair

8、s ,both of which may be frustrated by a decision issuing from U .S .courts . In short ,for purposes of investment dispute resolution ,the Act of State Doctrine will only bar a plaintiff from suing in a U .S .court to obtain a judgment against the foreign stateB .Act of State Doctrine and FInternatio

9、nal Treaty Rights for the Foreign Investor 02International Treaty Rights foA .BITs and FTAs Bilateral investment treaties (BITs),as well as free trade agreements ( FTAs)may contain an investment chapter .These treaties often include more than just substantive commitments to afford foreign investors

10、a minimum standard of fair treatment .I hey also commonly back up these promises with a commitment to submit to mandatory dispute resolution with the investor itself if the investor claims a violation of the treaty commitments .In other words ,the host state effectively waives its sovereign immunity

11、 with respect to all foreign investors from the other state party to the treaty with regard to the form of dispute resolution agreed upon .Because the host state is unlikely to agree to submit itself voluntarily to the jurisdiction of the courts of another sovereign state ,the preferred means of dis

12、pute resolution is arbitration .Such treaties give foreign investors a direct right to resort to international arbitration if the host state violates a treaty provision . Generally ,the law applicable in investment arbitration will be the rules in the BIT or FTA itself supplemented by any law specif

13、ied in the BIT .Many BITs leave the choice of applicable law to the arbitration rules chosen by the parties ( e.g .,ICC Rules of Arbitration or ICSID Arbitration Rules )or to the discretion of the tribunal itself . A .BITs and FTAs Bilateral invB .Ad Dispute Settlement Bodies 78%DirectorsManagersDes

14、ignersIT SpecialistMain SpecialistSupportWhere a BIT or FTA does not grant a right to investor-state dispute settlement ,other avenues of redress may be available .Bilateral investment and trade treaties do not exhaust the possibilities for obtaining compensation for expropriation or other harm to a

15、n investment caused in or by the host state .In some cases ,especially when a significant change in the legal ,economic ,or political environment of the host state causes a substantial interruption in international investment ,states may set up ad hoc dispute settlement bodies to resolve claims by f

16、oreign investors against the host state . B .Ad Dispute Settlement BodieICSID Arbitration 03ICSID Arbitration 03A .ICSID Arbitration Rules :Basic Provisions(1) Bank Group which was established to promote a climate of mutual confidence between states and investors that would be conducive to internati

17、onal investment flows to developing countries .The Convention on the Settlement of Investment Disputes between States and Nationals of Other States ( ICSID Convention )established a secretariat to facilitate the resolution of international investor-state disputes by conciliation or formal arbitratio

18、n .ICSID arbitration never takes place entirely between two private parties ;instead ,it is designed solely for disputes between private investors and the states that host the investment themselves . If an investor invokes ICSID arbitration against a state party to the ICSID Convention , it must be

19、able to rely on : ( 1)a BIT ,FTA or other treaty provision committing the state to arbitrating the relevant class of investment disputes with investors : ( 2)an agreement between the investor and host state to dispute ;or ( 3)legislation in ,or a declaration by ,the host state committing itself to a

20、rbitrate the relevant class of investment disputes with investors .Article 25 of the Convention allows states unilaterally to publish a notification that a defined class of disputes may or may not be submitted to arbitration ,such as those relating to a specific sector or industry .ICSID does not ar

21、bitrate disputes .Instead ,ICSID has two sets of procedural rules to facilitate arbitration before qualified experts in international investment law .The ICSID Arbitration Rules apply when both the host state and the investor state are parties to the ICSID Convention .If one of the three conditions

22、listed above applies ,ICSID is empowered to facilitate resolution of the dispute under its Arbitration Rules .When only the host state or the investor state ( not both )is a party to the Convention ,the ICSID Additional Facility Rules may be used .ICSID arbitration under the Arbitration Rules may on

23、ly proceed if the dispute arises directly out of an international investment.A .ICSID Arbitration Rules :BaA .ICSID Arbitration Rules :Basic Provisions(2) The ICSID Arbitration Rules have much in common with the commercial arbitration rules of the ICC ,UNCITRAL ,and others ,but they do differ in a f

24、ew respects .ICSID arbitrations generally use a panel of three arbitrators .Each party appoints one arbitrator , and proposes a third as the president of the tribunal .If the parties cannot agree on the third arbitrator ,the Chairman of the ICSID Administrative Council appoints the third ( Article3

25、（1）).One important safeguard to prevent the possibility of perceived bias is the rule prohibiting each disputing party from appointing an arbitrator of his own nationality without the consent of the other party .Upon appointment of a tribunal ,the tribunal will consult with the parties and issue ord

26、ers setting forth the procedures to be observed in the arbitration .Generally ,a pre-hearing conference will follow in which the parties will stipulate the facts not in contention .The parties will then submit written memorials and counter-memorrials pleading the facts and arguing for a favorable ou

27、tcome under their respective interpretations of the applicable law .The applicable law is the one agreed upon by the parties , such as BIT or FTA ,supplemented by the rules of customary international law .If there is no BIT or FTA ,or if the BIT or FTA so provides ,the law of the host state will gen

28、erally apply (Article42 (1). Upon conclusion of the case ,the tribunal deliberates in private and arrives at a decision by a majority vote of all members .In most cases ,the award is made publically available ,although some awards go unpublished by agreement of the parties under Article 48 ( 5)of th

29、e Convention .Following the award ,another unusual feature of ICSID arbitration becomes available .Article 50 of the ICSID Convention and Chapter of the Arbitration Rules provide that either party may apply to the ICSID Secretary-General for :an interpretation ;revision in case of the discovery of s

30、ome new and important fact after the issuance of the award ;or even the annulment of the award on specified grounds ,such as failure to state the reasoning on which the award was based or corruption of the tribunal . A .ICSID Arbitration Rules :BaB .Exhaustion of Local Remedies To use ICSID arbitrat

31、ion, an investor is generally not required to exhaust local remedies ,which means that investors are not usually obligated to seek relief in the courts of the host state before invoking ICSID arbitration unless the relevant BIT or FTA requires it . B .Exhaustion of Local RemedieC .Attribution of Con

32、duct to the Host State Unlock PageHummerUmbrellaBulbOne important question sometimes raised in investment disputes is whether the injury of which the investor complains can be attributed to the host state government .In general , the host state cannot be held liable for injuries caused by the acts o

33、f private third parties , even if those private acts deprive the investor of some or all of the benefit of the investment .For example ,a consumer boycott of a foreign investors products or services in the host state can severely undermine the value of the investment ,but if the host state governmen

34、t did nothing to foment or prolong the boycott ,it cannot be held responsible on a theory of expropriation ,failure of national treatment ,or otherwise . C .Attribution of Conduct to tD .Withdrawal from the ICSID Convention A host state that has consented to ICSID arbitration may at some point decid

35、e to with - draw its consent to future arbitrations .Despite the withdrawal ,current foreign investors continue to benefit from the protection of the state consent to arbitrate .ICSID tribunals have consistently held that a withdrawal of consent to arbitrate investment disputes may not apply retroac

36、tively . D .Withdrawal from the ICSID CStandard of Investment Protection 04Standard of Investment ProtectIn the current world ,there are many international treaties mostly bilateral and regional-in which host states commit to providing substantive protections for the investments of foreign nationals

37、 of other state parties to the treaties .Many international investment disputes are based on investor claims that the host state violated the national treatment or most favored nation standards .In addition to treaty-based protections ,an investor may negotiate a contract with the host state governm

38、ent providing for customized protections ,including those commonly found in BITs and possibly others as well .For example , one common contract provision in agreements between foreign an host states is a stabilization clause ,which provides that any significant change in the host states legislation

39、will not adversely affect the investment ;the foreign investors will continue to benefit from the law in force at the tine the investment was made .Such clauses prevent the host state from luring in foreign investment with attractive opportunities and then changing its laws in a manner detrimental t

40、o the investment after the investor has already committed his capital . Three other topics of dispute likely to arise in interpreting such treaty-based protections are :( a)how to determine whether an investment has been expropriated ;( b)the standard of compensation payable to the investor when he

41、has been determined that an expropriation has occurred ;and ( c)what the standard of fair and equitable treatment and full protection and security requires of host states .The following discussion will assist you in understanding some trends in the international practice interpreting these standards

42、 of protection . In the current world ,thereA .Expropriation and Standard of Compensation(1) ( 1)As a general matter ,under customary international law ,states are entitled to regulate their economy for a public purpose ,according to law ,and in a nondiscriminatory manner ,even if it harms the econo

43、mic interests of domestic and foreign investors . ( 2)Under customary international law ,governmental and private actors are free to agree upon the point at which governmental regulation will constitute an indirection ,as well as the consequences of that determination for compensation .Thus ,treatie

44、s and private contracts may adopt any definition of expropriation acceptable to the parties ( 3)The practice of states and public insurance entities is to designate the sorts of acts subject to compensation ,and ,in particular ,to specify whether indirect expropriatory acts are covered . ( 4)Under c

45、ustomary international law ,indirect expropriations are treated as a form of expropriation subject to the duty to provide compensation . ( 5)Under customary international law ,whether a governmental regulation is an in - direct expropriation turns on the substance of the measure and not its form . (

46、 6)Decision makers charged with determining the point at which governmental regulation becomes an indirect expropriation have generally considered three factors critical to the determination :the impact of the measures on the investment ,the extent to which the investor had vested property rights in

47、 the investment ,and the context of the governmental measure including its purpose and the proportionality between the harm to the investor and the benefit to the public . . A .Expropriation and Standard A .Expropriation and Standard of Compensation(1) Expropriation can be classified into direct exp

48、ropriation and indirect expropriation .A direct expropriation occurs when the host state fully deprives a foreign investor of owner . ship or control ,or both ,of his investment .Deprivation of ownership means transferring title to the investment to the state or the states designee .Along with a tra

49、nsfer of title comes the right to the companys profits and ( usually)the right to control the investments business operations .But an expropriation will have occurred even if title remains with the investor ,if the host state effectively deprives the investor of control over the investment . One of

50、the difficulties of international investment law is how to determine when state regulation that imposes costs on a foreign investor causes an indirect expropriation of the protected investment triggering the obligation to compensate that foreign investor ,and when the regulation merely constitutes a

51、 permissible exercise of the states police power .Although it is impossible to state a uniform rule for determining when state regulation rises to the level of an indirect expropriation ,the U .S .Model BIT contains some standards for indirect expropriation . The following elements represent the gen

52、eral rules of customary international law that are internationally applied in investment arbitration : A .Expropriation and Standard A .Expropriation and Standard of Compensation(1) Customary international law was long unsettled regarding the standard of compensation due for the expropriation of a f

53、oreign investment by the host state .In general ,an internationally wrongful act by a state gives rise to the obligation under customary international law to provide full compensation for the claimants loss .In the renown case Factory at Chorzow ,the Permanent Court of International Justice ( the pr

54、edecessor to todays International Court of Justice )held that a breach of engagement involves an obligation to make reparation in adequate form and such reparation must, as far as possible ,wipeout all the consequences of the illegal act and reestablish the situation which would ,in all probability

55、,have existed if that act had not been committed . Although some international disagreement remains ,investor states have now managed to entrench the general principle announced by the PCI in the Factory at Chorzow case in the customary international law regarding expropriated foreign investments .T

56、he 2004 U .S .Model BIT accordingly provides in Article 6 ( 1)that a host state that directly or indirectly expropriates a covered investment must pay prompt, adequate ,and effective compensation .Article6 further elaborates the standard of compensation : The compensation referred to in Paragraph 1

57、(c)shall: ( a)be paid without delay : ( b)be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place ( the date of expropriation ); ( c)not reflect any change in value occurring because the intended expropriation had become known earlier ;an

58、d ( d)be fully realizable and freely transferableA .Expropriation and Standard B .Fair and Equitable Treatment and Full Protection and Security PotentialMost BITs and FTAs with investment chapters commonly engage the host state to provide fair and equitable treatment and sometimes full protection an

59、d security . For many years ,a significant number of developing states ,mostly in Africa and Asia ,op - posed and refused to include either commitment in BITs with capital-exporting states . The requirement of full protection and security seem scomparatively straightforward ;states owe a duty of nat

60、ional treatment in the protection of foreign investments , meaning that in the event of crime or civil disorder ,a state bound by a national treatment obligation must provide the same police protection to the foreign investment as it does to the facilities ,personnel ,and chattels of its own nationa