第6課國際投資法的非歧視待遇義務(wù)PPT課件

1、第6課 國際投資法的非歧視待遇義務(wù)國際投資法課程 任課教師 楊幸幸Non-discrimination in international economic lawOne of the main objectives of international trade and investment law is to limit state measures that discriminate based on the nationality of the foreign individual, entity, good, service or investment in questionThe ra

2、tionales for non-discriminationEconomic rationale: it promotes efficient economic exchangePolitical rationale: It sustains multilateralism and prevents conflicts that might arise due to discriminatory economic policies非歧視待遇概述International economic treaties limit nationality-based discrimination thro

3、ugh two distinct non-discrimination treatment obligations: national and most-favoured-nation (MFN) treatment. National treatment affords non-discrimination between the national and the foreign. MFN treatment affords non-discrimination between the foreign and the foreign. 非歧視待遇概述1. 最惠國待遇最惠國待遇的案例研習閱讀關(guān)

4、于ICS v Argentina的案件材料，思考和回答以下問題：2.本案當事方？本案涉及的仲裁機構(gòu)？3. 本案涉及的兩個法律爭議具體是什么？程序問題還是實體問題？兩個法律爭議之間邏輯關(guān)系？是否可以調(diào)換兩個法律爭議的分析次序？為什么？本案為什么會涉及兩個BITs？4. 仲裁庭關(guān)于第一個法律爭議的裁決結(jié)論是？仲裁庭為何要論證“requirement”與“non-fulfillment of the requirement”的問題？除此之外，仲裁庭還從哪些方面加以論證？5. 仲裁庭關(guān)于第二個法律爭議的裁決結(jié)論是？仲裁庭的論證邏輯？重要的關(guān)鍵詞？運用了怎樣的條約解釋方法？6. 仲裁庭分析“fork i

5、n the road”與“”two bites at the apply”是為了論證什么？6. 對本案涉及的法律爭議問題，ICS v Argentina的仲裁裁決是否一錘定音地終結(jié)了此類問題的爭議？如何理解英文材料的標題“Third Time Lucky for Argentina”？7. 所讀英文材料的文獻類型？所讀中文材料的文獻類型？此類文獻有何利弊？使用時有何注意事項？一、最惠國待遇的基本含義Most-Favoured-Nation Clauses, or MFN Clauses, figure in the vast majority of investment protection

6、treaties. They are intended to ensure “that a host country extends to the covered foreign investor and its investments, as applicable, treatment that is no less favourable than that which it accords to foreign investors of any third country.”By according such equal treatment, MFN Clauses provide a l

7、evel playing field between foreign investors from different countries.一、最惠國待遇的基本含義Along with the national treatment standard, MFN treatment belongs to the category of relative standards, in the sense that it is determined by reference to treatment accorded to others in the same condition, in this ca

8、se investors of third countries.一、最惠國待遇的基本含義Along with the national treatment standard, MFN treatment belongs to the category of relative standards, in the sense that it is determined by reference to treatment accorded to others in the same condition, in this case investors of third countries.最惠國待遇的

9、適用As summarized by Campbell McLachlan, general elements of MFN Clauses in investment treaties form a legal test which requires responding to the following questions:What acts of the State are capable of constituting “treatment”?What is the relevant class of persons or things the comparators whose tr

10、eatment is to be compared with the class of persons protected under the MFN Clause?The level of treatment accorded: is it less or no less favourable?最惠國待遇的適用：常見爭議Notion and Scope of TreatmentAlthough an MFN Clause implies a comparison of treatment, treaties are usually silent as to what exactly cons

11、titutes such treatment. Thus, this notion is generally left to the interpretation of arbitral tribunals.最惠國待遇的適用：常見爭議There is little doubt that an MFN Clause can be used to import more favourable substantive treatment from a third treaty. The investment arbitration caselaw shows that an MFN Clause h

12、as been used in order to import the following substantive protection standards:Fair and Equitable Treatment;Full Protection and Security Standard; orUmbrella Clause.最惠國待遇的適用：常見爭議More controversy, however, emerges regarding the use of an MFN Clause in order to import more favourable procedural and/or

13、 dispute resolution provisions from a third treaty. In this respect, arbitral tribunals have taken diametrically opposed positions.最惠國待遇的適用：常見爭議In one series of decisions, arbitral tribunals have taken a liberal approach considering that, except if otherwise indicated in the BIT, there is nothing th

14、at would prevent an MFN Clause to be used in order to import a more favourable dispute resolution mechanism from a third treaty. This approach started to proliferate after the decision in Maffezini v. Spain case, where the arbitral tribunal held that “if a third-party treaty contains provisions for

15、the settlement of disputes that are more favorable to the protection of the investors rights and interests that those in the basic treaty, such provisions may be extended to the beneficiary of the most favored nation clause”. In the same vein, the tribunal in Austrian Lines v. Slovakia considered th

16、at there is “no conceptual reason why an MFN clause should be limited to substantive guarantees and rule out procedural protections, the latter being a means to enforce the former.”最惠國待遇的適用：常見爭議Nevertheless, other arbitral tribunals have rejected the argument that an MFN clause could extend to proce

17、dural and/or dispute resolution provisions. For example, while interpreting the Argentina-Italy BIT, the arbitral tribunal in the Impregilo v. Argentina case held that “Impregilo cannot rely upon the MFN clause in Article 3(1) of the Argentina-Italy BIT for the purpose of avoiding the obligation to

18、resort to the local courts for 18 months. This clause cannot be used to circumvent the obligation to resort to the competent administrative or judicial bodies for 18 months.” Likewise, the tribunal in Euram v. Slovakia held that “even if that BIT contains a broadly worded MFN clause, that clause can

19、not substitute for the arbitration provision and make it possible for an investor successfully to bring arbitration proceedings against a State Party to the BIT, no matter what provisions for arbitration that State Party might have agreed to include in its other BITs. It concluded that the MFN provi

20、sion in Article 3(1) of the BIT does not affect the scope of its jurisdiction under Article 8.”練習RCEP投資章節(jié)練習CAI中歐投資協(xié)定（未生效）“There is little doubt that an MFN Clause can be used to import more favourable substantive treatment from a third treaty”拓展思考拓展思考2. 國民待遇一、國民待遇的基本含義A national treatment obligation

21、 requires non-discrimination between similarly-situated domestic investors/investment and foreign investors/investments. nuances in wording: “no less favourable than”:不低于 （不排除給予外國投資者及其投資“超國民待遇”）“as the same favourable as”：等同于根據(jù)待遇標準的判定是否需要參照性，國際投資待遇可分為“相對待遇標準”（relative standard）與絕對待遇標準（absolute stand

22、ard）非歧視待遇（國民待遇與最惠國待遇）規(guī)定的是“相對待遇標準”公平公正待遇（FET）規(guī)定的是“絕對待遇標準” A national treatment obligation accords a relative or contingent standard of treatment: it does not bestow an absolute or minimum standard of treatment. The legal analysis of national treatment involves a comparison between the host states tre

23、atment of domestic and foreign investors or domestic and foreign investments. Unlike an absolute or minimum standard of treatment provision (e.g., expropriation and fair and equitable treatment), the national treatment standard does not have any intrinsic substantive content. The required standard o

24、f treatment depends on the treatment of the applicable treaty-defined comparator.一、國民待遇的基本含義一、國民待遇的基本含義根據(jù)國家主權(quán)原則，任何國家都沒有義務(wù)給予外國投資者以國民待遇。為了吸引外國投資，創(chuàng)造良好的投資環(huán)境，東道國：（1）通過國內(nèi)立法單方面給予外國投資者以國民待遇（2）通過締結(jié)國際投資條約中的國民待遇條款，給予其他締約方投資者及其投資以國民待遇一、國民待遇的基本含義In international investment law, national treatment is a treaty-bas

25、ed obligation. Although the prevalence of national treatment provisions in international investment agreements (IIAs) might suggest consistent and general state practice sufficient for the formation of a customary international law obligation, the scope and content of the provisions vary widely and

26、the obligations are subject to myriad exceptions.Even if sufficient state practice existed to satisfy the requirements for establishing a customary international law obligationAt present, the more persuasive view is that national treatment obligations with respect to the treatment of foreign investm

27、ent arise only on the basis of an express treaty obligation.General overview of treaty practiceAlthough express national treatment obligations appear in almost all IIAs, there are significant variations between clauses, including whether the obligation: (i) is expressly subject to national law; (ii)

28、 appears in the same clause with MFN treatment; (iii) applies to establishment; (iv) applies to both investors and investments; (v) specifies the types of activities to which it applies; and (vi) contains an express comparator, such as in like circumstances.二、國民待遇的締約實踐：概述Establishment: pre-entry and

29、 post-entry models The majority of traditional IIAs do not provide foreign investors or investments the right of entry or establishment into the host state. National treatment obligations are typically limited to investments made in accordance with domestic laws, which may limit the ability of forei

30、gn investors to invest in the first place and stringently regulate the manner in which any permitted investments may be made. Most national treatment obligations arise only after a foreign investment has been made. This is often referred to as the post-entry or post-establishment model. Nonetheless,

31、 a number of IIAs notably US BITs and FTAs, recent Canadian BITs and FTAs, as well as a number of regional IIAs including the USMCA and the CPTPP establish pre-entry national treatment obligations. Under these IIAs, the host state must allow foreign investors and investments access to its markets on

32、 terms no less favourable than those enjoyed by national investors. These are often referred to as establishment rights. IIAs that provide national treatment establishment rights typically do so subject to important exceptions and reservations.三、國民待遇的締約實踐：準入前國民待遇VS準入后國民待遇準入后國民待遇東道國在國內(nèi)立法或?qū)ν饩喖s中承諾給予外國投

33、資者及其投資在擴大、管理、經(jīng)營、運營和銷售或其他處置在其領(lǐng)土內(nèi)投資方面的待遇，不低于在類似情形下給予其國內(nèi)投資者及其投資的待遇。準入后國民待遇模式下，外國投資者及其投資不具有進入東道國在其境內(nèi)投資的一般性權(quán)利。是否允許某一外國投資者及其投資進入東道國，取決于東道國的國內(nèi)法。拒絕批準一項投資的進入和設(shè)立不違反東道國的條約義務(wù)，不產(chǎn)生國際法上的責任。三、國民待遇的締約實踐：準入前國民待遇VS準入后國民待遇準入前國民待遇是在全面的準入后國民待遇基礎(chǔ)上再推行準入前國民待遇。該模式出現(xiàn)較晚，漸成主流。東道國承諾在投資的設(shè)立、并購以及投資在東道國設(shè)立后的運營、管理、處置等方面都給予外國投資者及其投資不低于

34、在類似情形下給予其國內(nèi)投資者及其投資的待遇。三、國民待遇的締約實踐：準入前國民待遇VS準入后國民待遇四、國民待遇的適用IIAs do not provide a required method for applying national treatment. In analyzing national treatment, NAFTA investment tribunals have considered three distinct issues. First, tribunals have identified the relevant subjects for comparison are they in like circumsta