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留学生法律条约解读:BIT条约的相关解读

Interpretation of the Relevant BIT   BIT条约的相关解读
 Bearing in mind the above remarks, the Tribunal interprets theBIT in accordance with the rules established by the ViennaConvention.
考虑到上述表示的知识,法庭按照“维也纳公约”所确立的规则来对BIT条约的相关准则进行解读。
According to Article 31 of the Vienna Convention, “atreaty shall be interpreted in good faith in accordance with theordinary meaning to be given to the terms of the treaty in theircontext and in the light of its object and purpose.” For that purpose,the Tribunal will rely mainly on the text of the BIT as a source of thecommon purpose of the Contracting Parties.
The Tribunal believes that the overall text of the BIT, includingthe Preamble and Protocol thereof, reveals the Contracting Parties'intention to promote and protect investments, and for the particularinstance of the Republic of Peru, to promote and protect theinvestments of Chinese nationals in Peruvian territory.
As indicated above, the Tribunal notices that Provision 1(2) ofthe Peru-China BIT merely establishes that “The term ‘investors’means: in respect of the People's Republic of China: (a) naturalpersons who have nationality of the People's Republic of China inaccordance with its laws…” Therefore, the Tribunal may not imposeClaimant more requirements than those expressly established in the BIT.
On the other hand, Article 1(1) of the BIT establishes that theterm “investment” means every kind of asset invested by investorsof one Contracting Party in accordance with the laws andregulations of the Other Contracting Party in the territory of thelatter, and in particular, though not exclusively, includes:a) movable, immovable property and other property rights such asmortgages and pledges,b) shares, stock and any other kind of participation in companies;c) claims to money or to any other performance having aneconomic value,d) concessions conferred by law or under contract, includingconcessions to search for or exploit natural resources.
在法律以及相关合同的规定下,相关的优惠措施包括寻找或开发自然资源的特许权。
Based on the above, the Tribunal interprets that theContracting Parties in its intention to promote and protectinvestments, decided to define them through an ample formulationwhich, by general rule, will protect all kind of investments.Additionally, in consideration of the Tribunal no evidence has beenproduced that indirect investments are not “in accordance with thelaws and regulations” of the Republic of Peru.(57)Consequently, theTribunal does not find any indications in the BIT leading them toexclude indirect investments of Chinese nationals in Peruvianterritory from the scope of application of the Treaty, particularlywhen it is proven that they exert the property and control over suchinvestments.http://ukthesiss.com/dissertation_sample/
The Tribunal would expect such a limitation would have beenincluded explicitly in the BIT法庭希望这样的限制将被明确地包含在BIT 的条约中。
For example, the Contracting Parties tothe BIT could have agreed on an article excluding from the benefitsof the Treaty any investors with investments channelled throughthird-party countries who otherwise would be eligible thereunder.108. On the contrary, the Tribunal would be excluding arbitrarily agroup of natural persons from the scope of application of the BITand, for any practical purposes, would be amending the definition of“investors” whereunder the Treaty includes all natural personshaving the nationality of the People's Republic of China inaccordance with its laws. This, in turn, would result in an unusualhermeneutical exercise, insofar as the Tribunal would be drawingconclusions not from the explicit objectives of the BIT of promotingand protecting investments, but from exceptions implicit therein.
The analysis of the Tribunal is not changed by remarks aboutother investment treaties signed by the parties to the BIT with third-party countries wherein, unlike the BIT, indirect investments areexplicitly protected. The Tribunal does not see therein anydetermining reasons with regard to the matter in question. For thatreason, the Tribunal does not find useful to rely on other treaties,particularly when whole set of investment treaties signed by theparties to the BIT have not been brought to the Tribunal forconsideration.
The Tribunal, however, bears in mind that the wording used inthe treaties quoted to refer to indirect investments does seem tohave, in some cases, merely clarifying or illustrative purposes. Evenin other cases, the main purpose of the wording used would be morefocused on extending the protection to the appropriate treaties toindirect shareholders of a company that constitutes by itself theinvestment, rather than on differentiating whether the investmentwas channelled through a third-party country.
Consequently, the Tribunal considers that the BIT protectsindirect investments of natural persons of Chinese nationality inPeruvian territory. As explained hereinabove, the lack of expresswording in the BIT cannot imply by itself that the intention was toexclude indirect investments of natural persons when they holdownership and control thereof.因为上面的解释,在 BIT 条约中表达的并不清楚的部分是包含那些间接的投资的部分的,以及他们所控制的间接的投资。


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