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中秘双方签订争端条约的必要性分析-law Thesis

 Peru and China have also signed and ratified many other BITsthat include the commitment to accord fair and equitable treatmentand protection to the investment, which also contain provisions ondispute settlement including “any dispute” that may arise thereunder.
 Article 3(1) of the Peru-China BIT specifically accordsinvestors of both Contracting Parties the benefits of “fair andequitable treatment” and “protection” in the territory of the otherContracting Party. Article 3(2) in turn provides that “the treatmentand protection referred to in Paragraph 1 of this Article shall not beless favourable than that accorded to investments and activitiesassociated with such investments of investors of a third State.”
这些情况无论是站在原告或者被告双方的立场上,都是会出现了以下问题:These circumstances and both Respondent's and Claimant'spositions arise the following issues: the interpretation rules of theMFN clauses, the interpretation of the clause to determine theintention of the Contracting Parties as reflected by the wording of theclause and, in particular, if the “treatment” accorded to foreigninvestors mentioned in Article 3 of the BIT regarding the allegedviolation of the fair and equitable treatment principle may beinterpreted so as to include the broader provisions on ICSIDarbitration established by ulterior BITs. The Tribunal shall analyseeach of these questions below.法庭应分析以下这些问题。
作为第一步,该法庭又比较依赖于“维也纳公约”,其中参考的是国际条约的规定“的第31条As a first step, the Tribunal again relies on Article 31 of theVienna Convention, which establishes that an international treatyshall be:interpreted in good faith in accordance with theordinary meaning to be given to the terms of the treatyin their context and in the light of its object andpurpose.206. As mentioned above, both the Vienna Convention and thedecisions of the International Court of Justice emphasise that “whatmatters is the intention of the parties expressed in the text, which isthe best indicator of the most recent common intention of theparties”(144)In addition, as it has already been mentioned, theTribunal understands that the Vienna Convention does not establisha different interpretation rule for the different clauses of the treaties.
Article 3 of the BIT does not expressly include or exclude thesettlement of disputes. Article 3(3), however, lists a number ofspecific exceptions to the treatment established in Articles 3(1) and3(2), i.e. any preferential treatment accorded based on “customsunion, free trade zone, economic unions, [or] agreement relative to avoidance of double taxation or for facilitating frontier trade.” Ageneral aspect of the interpretation is that mentioning explicitly thespecific exceptions, implies that there are other matters that havenot been excluded specifically “expression unius est exclusionalterius”(146)This rule provides certain clarity to the Tribunal althoughthis is just the beginning of the story.)本规则向法庭提供了关于复杂事物的清晰度的问题,虽然这仅仅只是问题的开始。

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