Chapter 10,11,12---four cases

By Arthur Russell,2014-03-04 11:22
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Chapter 10,11,12---four cases

保过神器,看阴影就好。各CASE 起始页1,5,8,12

    ICSID SGS v. Pakistan, Decision on Objection to Jurisdiction (2003)

     2003ICSID裁决的SGS v?Pakistan案是对“保护伞条款”作出详细解释的国际投资争











    请求”)purely contractual claims?,不构成对“保护伞条款”的违反,ICSID无权管辖,除非



    双边投资条约中其他实体条款,即属于“条约请求”)treaty claims?的情况下,才构成对“保




Summary of legal issues

    and Decision on Jurisdiction

    SGS asserted that the Tribunal had a broad jurisdiction that encompassed both the alleged breaches of the BIT and the PSI Agreement. SGS submitted that Pakistan’s violations of the SwitzerlandPakistan BIT included a failure

    to promote SGS’s investment, impairment of the enjoyment of its

    investments, failure to accord fair and equitable treatment, and expropriation without compensation. SGS also argued that Pakistan had breached its obligations under Article 11 (the “umbrella clause”) of the

    SwitzerlandPakistan BIT by violating the PSI Agreement. According to SGS, the umbrella clause had the effect of elevating violations of the PSI Agreement, which were contract claims, into treaty claims.

    Pakistan argued against ICSID jurisdiction on the ground that the parties had previously agreed to arbitration in Pakistan under the PSI Agreement, which pre-dated the ICSID arbitration request. Pakistan submitted, in the alternative, that the Tribunal had no jurisdiction because SGS’s claims were

    contract and not treaty-based claims. Pakistan also asserted that SGS’s

    conduct in the Swiss legal proceedings and Pakistan Arbitration amounted to a waiver of its right to bring ICSID arbitration under the BIT and that,


in any event, SGS’s request for ICSID arbitration was premature because

    the BIT required a 12-month consultation period prior to arbitration. Pakistan also contested that SGS had failed to make an investment under the BIT.

The Tribunal accepted and rejected some of each partys arguments. It

    found it had jurisdiction to decide SGS’s claims of violations of the

    SwitzerlandPakistan treaty. It held that the right to exercise jurisdiction over treaty claims did not depend on the findings of the Pakistan Arbitration (which was adjudicating issues of contract breach arising under the PSI Agreement), thereby permitting parallel proceedings arising from the same set of facts, albeit under different governing laws. The Tribunal similarly rejected several of Pakistan’s other jurisdictional arguments. More

    specifically, it found that the expenditures made by SGS pursuant to the PSI Agreement constituted an “investment” within the meaning of the BIT

    and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) and that, because the BIT did not contain a “fork-in-the-road” clause, SGS had not

    waived its rights to arbitration under the BIT by participating in the Swiss and Pakistani legal proceedings; it also found that the 12-month consultation period in the BIT was directory and procedural rather than mandatory and jurisdictional in nature.

    The Tribunal, however, declined jurisdiction with respect to claims based on alleged breaches of the PSI Agreement(purely contractual claim) that did not amount to breaches of the BIT, rejecting SGS’s assertion that it had jurisdiction to decide

    contract disputes under the broad offer to arbitrate at ICSID in the SwitzerlandPakistan BIT and noting that such a provision could not supersede or invalidate the jurisdiction clause in the PSI Agreement. The Tribunal likewise refused SGS’s contention that the umbrella clause could

    convert breaches of Pakistan’s contracts to violations of the BIT, noting that

    there was no evidence that this was the shared intention of both Switzerland and Pakistan.

Adopting a narrow reading of umbrella clauses as

    not automatically transforming purely contractual

    claims into treaty claims

    The SwitzerlandPakistan BIT includes a so-called umbrella clause (Article 11) that

    provides, Either Contracting Party shall constantly guarantee the observance of the commitments it has entered into with respect to the investments of the investors of the other

    Contracting Party. Umbrella clauses have the potential to place all forms of domestic administrative, regulatory or contractual commitments under the umbrella of the treaty. The

    SGS v. Pakistan Tribunal was the first international arbitral tribunal to examine the legal effect of

    such a clause. It rejected SGSs claim that the clause had the effect of entitling the investor to,


notwithstanding the existence of a valid contractual forum selection clause, elevate its

    contract claims to claims grounded on the BIT, thereby allowing it to bring such contract claims to

    the ICSID Tribunal for resolution and decision. It reasoned that to read umbrella provisions as

    suggested by SGSi.e., to be so far-reaching in scope, and so automatic and unqualified and sweeping in their operation, [and] so burdensome in their potential impact upon a Contracting Party”—there should be clear and convincing evidence that that was what the parties had

    intended. Because SGS had adduced no such evidence of intent, its asserted interpretation of the umbrella clause failed (para. 167).


    167. Considering the widely accepted principle with which we started, namely, that under general international law, a violation of a contract entered into by a State with an investor of another State, is not, by itself, a violation of international law, and considering further that the legal consequences that the Claimant would have us attribute to Article 11 of the BIT are so far-reaching in scope, and so automatic and unqualified and sweeping in their operation, so burdensome in their potential impact upon a Contracting Party, we believe that clear and convincing evidence must be adduced by the Claimant. Clear and convincing evidence of what? Clear and convincing evidence that such was indeed the shared intent of the Contracting Parties to the Swiss-Pakistan Investment Protection Treaty in incorporating Article 11 in the BIT. We do not find such evidence in the text itself of Article 11. We have not been pointed to any other evidence of the putative common intent of the Contracting Parties by the Claimant.

168. The consequences of accepting the Claimants reading of Article 11 of

    the BIT should be spelled out in some detail. Firstly, Article 11 would amount to incorporating by reference an unlimited number of State contracts, as well as other municipal law instruments setting out State commitments including unilateral commitments to an investor of the other Contracting Party. Any alleged violation of those contracts and other instruments would be treated as a breach of the BIT. Secondly, the Claimants view of Article 11 tends to make

    Articles 3 to 7 of the BIT substantially superfluous. There would be no real need to demonstrate a violation of those substantive treaty standards if a simple breach of contract, or of municipal statute or regulation, by itself, would suffice to constitute a treaty violation on the part of a Contracting Party and engage the international responsibility of the Party. A third consequence would be that an investor may, at will, nullify any freely negotiated dispute settlement clause in a State contract. On the reading of Article 11 urged by the Claimant, the benefits of the dispute settlement provisions of a contract with a State also a party to a BIT, would flow only to the investor. For that investor could always defeat the States invocation of the contractually specified forum,

    and render any mutually agreed procedure of dispute settlement, other than BIT-specified ICSID arbitration, a dead-letter, at the investors choice. The


    investor would remain free to go to arbitration either under the contract or under the BIT. But the State party to the contract would be effectively precluded from proceeding to the arbitral forum specified in the contract unless the investor was minded to agree. The Tribunal considers that Article 11 of the BIT should be read in such a way as to enhance mutuality and balance of benefits in the inter-relation of different agreements located in differing legal orders.

    169. Another consideration that appears to us to support our reading of Article 11 of the BIT, is the location of Article 11 in the BIT. The context of

    Article 11 includes the structure and content of the rest of the Treaty. We note that Article 11 is not placed together with the substantive obligations undertaken by the Contracting Parties in Articles 3 to 7: promotion and admission of investments in accordance with the laws and regulations of the Contracting Party (Article 3); prohibition of impairment, by unreasonable or discriminating

    measures, of the management, use, enjoyment, etc. of such investments and according “fair and equitable treatment” to investors of the other

    Contracting Party (Article 4); free cross-border transfer of payments relating to the protected investments (Article 5); prohibition of expropriation or other measures having the same nature or effect, unless taken in the public interest, on a non-discriminatory basis, under due process of law and with provision for effective and adequate and prompt compensation (Article 6); and the mostfavored- investor provision (Article 7). These substantive standards are marked off by Article 8 (“Principle of Subrogation”) from the two dispute settlement

    procedures recognized in the BIT: investor v. Contracting Party (Article 9); and Contracting Parties inter se (Article 10). Then follows Article 11 (“Observance of Commitments”) which in turn is followed by the “Final

    Provisions” (Article 12) and the signature clause.

    170. Given the above structure and sequence of the rest of the Treaty, we consider that, had Switzerland and Pakistan intended Article 11 to embody a substantive “first order” standard obligation, they would logically have placed

    Article 11 among the substantive “first order” obligations set out in Articles 3

    to 7. The separation of Article 11 from those obligations by the subrogation article and the two dispute settlement provisions (Articles 9 and 10), indicates to our mind that Article 11 was not meant to project a substantive obligation like those set out in Articles 3 to 7, let alone one that could, when read as SGS asks us to read it, supersede and render largely redundant the substantive obligations provided for in Articles 3 to 7.


    The Tribunal, however, did not close the door completely on the possibility of a treaty provision elevating contractual breaches to treaty breaches, by noting that Article 11 of the BIT would have to be considerably more


    specifically worded before it can reasonably be read in the extraordinarily expansive manner submitted by the Claimant (para. 171).

    Subsequent tribunals, starting with the SGS v. Philippines decision, have taken a less restrictive view of the effect of umbrella clauses, leading to a split in investment treaty jurisprudence on this common provision in treaties.

The critical opinions

    1. The SwitzerlandPakistan BIT is limited to the investment. The non-investment contracts are

    t raise too many violations not under the protection of the umbrella clause of the BIT. Thus it won

    under the BIT if the tribunal accepts SGSs contention.

    2. Most contracts between the host country and foreign investors do not touch upon MFN, FET or the national treatment provisions. Thus these provisions are still superfluous when the umbrella clause is not used.

    3. In practice, many umbrella clauses are not in the end of BITs. Some of them are written together with the articles of MFN, FET and national treatment provisions. The location is not a good ground to determine its importance and the parties willingness.

    ICSID SGS V. Philippines, Decision on Objection to Jurisdiction





    认为,SGS v?Pakistan案裁决对“保护伞条款”适用的解释缺乏说服力,确当



    实体条款。ICSID仲裁庭之后裁决的NobleVentures v?Romania等多个案件也

    赞成SGS v?Philippines案的裁决。

FACTS: On 23 August 1991, SGS Société Générale de Surveillance S.A. (“SGS”)

    concluded an agreement with the Republic of the Philippines regarding the provision of comprehensive import supervision services (“the Contract”).

    Under the Contract, SGS agreed to provide specialized services to assist in improving the customs clearance and control processes of the Philippines.


    The Contract required SGS to provide pre-shipment inspection services of the Philippines’ imports in the country of export, including verification of

    the imports’ quality, quantity and price. Under the terms of the Contract,

    SGS was required to maintain a liaison office in the Philippines and to provide certain technical and training assistance to the country. The Contract was extended three times, first in 1994 at the end of the initial three-year period, then in 1998 until 1999, and then finally from 31 December 1999 to 31 March 2000, at which point the Philippines government discontinued SGS’s services under the Contract. SGS submitted

    monetary claims to the Philippines government for unpaid sums under the Contract, amounting to approximately US$140 million plus interest.

Summary of legal issues

    and Decision on Jurisdiction

    After unsuccessfully pursuing settlement, SGS commenced ICSID arbitration proceedings, alleging that the Philippines had violated several articles of the SwitzerlandPhilippines Bilateral Investment Treaty (BIT)

    by refusing to pay the amounts claimed under the Contract, failing to accord SGS fair and equitable treatment, unlawfully expropriating SGS’s

    property, and breaching the so-called “umbrella clause” (which required

    the host state’s observance of commitments made to specific investments).

    The Philippines objected to the Tribunals jurisdiction over the matter,

    arguing that there was no “investment” in its territory as required by the

    BIT, that the dispute was purely contractual in character and that the issues in dispute were governed by the contractual dispute resolution clause, which referred the parties to Philippines courts.

    The Tribunal ruled that SGS had made an investment in the territory of the Philippines and that both the umbrella clause and the broad dispute resolution clause in the BIT gave it jurisdiction to hear the contract claims. The Tribunal held, however, that the contract claims were inadmissible because priority was to be given to the forum selection clause in the Contract. The Tribunal stayed the proceedings in favour of the dispute resolution forum specified in the Contract.

The power of umbrella clauses to transform purely

    contractual claims into treaty claims

    SGS argued that the Philippinesfailure to pay for services under the

    Contract constituted a breach of the BIT’s umbrella clause, Article X(2),

    which provides, Each Contracting Party shall observe any obligation it has assumed with regard to specific investments in its territory by investors of the other Contracting Party(emphasis added).

    The SGS v. Philippines Tribunal agreed, holding that the umbrella clause in

    the SwitzerlandPhilippines treaty meant what it said: that the host state would have to observe any legal obligation that the host state had or would


assume with respect to specific investments covered by the BIT (para. 115).

    The Tribunal set forth a number of arguments to support that finding, as well as to support its decision to deviate from the highly restrictive

    interpretation given to the umbrella clause by the SGS v. Pakistan Tribunal (noting that there was no doctrine of binding precedent under international law requiring it to adhere to the other SGS decision) (para. 120). First, the Tribunal looked at the concrete wording of the clause in the SwitzerlandPhilippines BIT, which it held to say, and to say clearly that

    the host state would have to observe any legal commitment it had or would in the future assume with respect to any specific covered investments (para. 115). The Tribunal then pointed out that the language of the Switzerland

    Pakistan BIT was formulated in different and rather vaguer terms than [the umbrella clause] of the SwissPhilippines BIT (para. 119). Further

    significant to the SGS v. Philippines Tribunal was the text of the preamble, from which it concluded that any uncertainty regarding the scope of the clause should be resolved in favour of protecting investment. This is underlines the importance of using broader preambular objectives in treaties, to avoid interpretations by tribunals that the singular objective of the BIT is the protection of foreign investment.

    The SGS v. Philippines Tribunal also addressed the concern raised by the

    SGS v. Pakistan Tribunal that giving the umbrella clause the effect of

    bringing contract claims under a treaty tribunals jurisdiction would

    override the forum selection clauses negotiated by parties to applicable investorstate contracts. The SGS v. Philippines Tribunal found that while this was a valid concern, assuming jurisdiction over contract claims through the umbrella clause does not necessarily have to override contractual forum selection clauses.

    Illustrating this theory, the Tribunal accepted jurisdiction under the umbrella clause over contract claims, but decided to give effect to the forum selection clause in the Contract, which mandated that domestic Philippine courts would have exclusive jurisdiction over contract disputes. The Tribunal emphasized that “a binding exclusive jurisdiction clause in a

    contract should be respected, unless overridden by another valid provision”

    (para. 138, emphasis added). The Tribunal decided that the BIT did not override the forum selection clause in the Contract, reasoning that general provisions such as the umbrella clause are generally not interpreted as

    overriding specific provisions of particular contracts freely negotiated between the parties.

    By staying the proceedings in favour of the parties’ chosen forum in the

    Contract, the Tribunal addressed the concerns of the SGS v. Pakistan Tribunal over the impact broad interpretations of umbrella clauses would have on existing forum selection clauses in investorstate contracts. The

    dissenting arbitrator, however, disagreed with this particular aspect of the decision, finding that the Tribunal should have issued a decision on the


    merits, based on the broad scope of the umbrella clause and consent to ICSID arbitration under the BIT. This dissenting view leaves the door open for future decisions permitting the umbrella clause to effectively rewrite the dispute resolution clause in investorstate contracts.

    The SGS v. Philippines and SGS v. Pakistan decisions are often cited as examples of ICSID decisions that result in divergent findings on similar treaty provisions. While some tribunals have followed the restrictive reading of the umbrella clause in SGS v. Pakistan, in decisions such as Eureko B.V. v. Poland1 and Noble Ventures v. Romania2 tribunals favour the SGS v. Philippines findings on the effect of the umbrella clause regarding jurisdiction over contract claims.

ICSID Maffezini v Spain (Decision on Objection to Jurisdiction) )2000?

赞成最惠国待遇涵盖程序事项的典型案例:" Maffezini v. Spain"

     " Maffezini v. Spain" 案?(以下简称“Maffezini案”)是第一个详细涉及国际投资条约中




















    限定条件反映了国际法的基本规则。(2)不能损害“岔路口条款”? 的适用,即如果基础













     自“Maffezini案”裁决作出后,又有" Siemens v. Argentina" (以下简称“Siemens案”)

    ?" Camuzzi v. Argentina" (以下简称“Camuzzi案”)、?" Gas Natural v. Argentina" (

    下简称“Gas Natural案”)、?" Tecmed v. Mexico" (以下简称“Tecmed案”)、?" Interaguas

    v. Argentina" (以下简称“Interaguas案”)、?" Grid v. Argentina" (以下简称“Grid案”)

    ?" Vivendi v. Argentina" (以下简称“Vivendi案”)? 等国际仲裁案的裁决支持将最惠国




    Mr. Emilio Agustín Maffezini, a national of Argentina, brought a claim against Spain under the ArgentinaSpain Bilateral Investment Treaty (BIT).

    Mr. Maffezini had invested in a Spanish company engaged in the production and distribution of chemical products. The dispute resolution clause in the BIT required that a dispute between the investor and state be referred to the courts of the host state (in this case, Spanish courts) before it could be brought to international arbitration. Spain contested the Tribunal’s jurisdiction on, among other grounds, the basis that the investor had not submitted the claim to Spanish courts as required by the ArgentinaSpain BIT.

    The investor, however, argued that he had not needed to go to Spanish courts to pursue local remedies because the most favoured nation (MFN) clause in the BIT allowed him to go straight to international arbitration. Like other typical MFN clauses, the ArgentinaSpain MFN clause provided

    that each treaty party must not treat the investor of the other treaty party less favourably than it treats an investor from any third state. Based on this, Maffezini argued that the MFN clause in the ArgentinaSpain BIT allowed

    him to invoke more favourable provisions in the ChileSpain BIT, because

    the latter did not include a requirement to seek local remedies prior to recourse to international arbitration.

    The Tribunal rejected Spains objections to jurisdiction, agreeing with

    Maffezini that the MFN clause included in the ArgentinaSpain BIT

    allowed the investor to rely on the more favourable arrangement contained in the Chile–Spain BIT regarding dispute resolution. In contrast to Spain’s

    BIT with Argentina, its BIT with Chile permitted the investor to submit the dispute to ICSID arbitration without first accessing the Spanish courts. After confirming it had jurisdiction over the investors claim, the Tribunal

    issued its decision on the merits in an award dated 9 November 2000,


finding Spain liable for breaches of the BIT.




    The Tribunals decision on the application of the MFN clause to dispute resolution provisions in BITs was a “first” and triggered a debate on the

    scope of MFN clauses. In particular, the decision raised concerns that MFN clauses could undermine dispute resolution clauses negotiated in treaties if investors were permitted to rely on more favourable provisions granted in third party treaties. Some countries reacted by adopting specific treaty texts stipulating that the MFN clause did not apply to procedural matters. The analysis below focuses on the Tribunals findings regarding the MFN

    clause and its application to dispute resolution provisions. The Tribunal noted that the ArgentinaSpain BIT provided domestic

    courts with the opportunity to deal with a dispute for a period of eighteen months before the matter could be submitted to international arbitration. Based on this provision, the Tribunal acknowledged that the investor’s

    failure to submit the case to the Spanish courts prior to bringing the claim to international arbitration as required by the ArgentinaSpain BIT would,

    in principle, have prevented the Tribunal from assuming jurisdiction. The investor, however, argued that, pursuant to the MFN clause in the ArgentinaSpain BIT, the investor could rely on more favorable provisions in Spains BITs with third parties. The MFN clause read, In all matters

    subject to this Agreement, this treatment shall not be less favourable than that extended by each Party to the investments made in its territory by investors of a third country.” According to the investor, the reference to “all

    matters” encompassed not only the BIT’s substantive provisions, but also

    its procedural provisions, such as the clauses regarding dispute settlement. Based on that interpretation, the investor sought to rely on the ChileSpain

    BIT, and argued that he was consequently allowed direct access to ICSID arbitration without first going to Spanish courts.

    Spain countered by arguing that the reference in the MFN clause to matters” in the Argentina–Spain BIT referred only to substantive or

    material aspects of the treatment granted to investors and not to procedural or jurisdictional questions.

    The Tribunal started with analyzing the subject matter to which the MFN clause applied in the “basic” treaty (in this case, the Argentina–Spain BIT).

    It found that if the matters covered by the MFN clause in the basic BIT were more favourably treated in a third party treaty, then, by operation of the MFN clause, that better treatment should also be accorded to the beneficiary under the basic BIT. The Tribunal then turned to the issue of

    whether dispute resolution was a matter covered by the MFN clause in the ArgentinaSpain BIT. It referred to treaties such as the U.K.Albania BIT


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