關(guān)于審裁處的分析行為的探討

 Analysis of the Tribunal審裁處的分析

 Preliminary Considerations初步考慮因素

In any legal system, arbitrators and justices general face thechallenge to interpret documents negotiated to create legalobligations in a given time and place to apply them in another timeand maybe under a significantly different context.
在任何法律制度中，仲裁員和法官在面對(duì)分歧的時(shí)候，都是需要進(jìn)行磋商的，以此可以在一個(gè)給定的時(shí)間和地點(diǎn)申請(qǐng)進(jìn)行另一個(gè)階段的調(diào)整，也許下一個(gè)會(huì)是不同的關(guān)于法定義務(wù)的文件。
In particular,doctrine has shown a considerable interest in the provisions ofcertain bilateral investment treaties signed in the 1980s and 1990s,as is the case of this dispute, wherein one of the signatories was acommunist government. Since then, many of these nations havebecome important targets of direct investments and, in some cases,have made considerable investments in other countries. China, forexample, has increased dramatically its share in the world economy,first as a magnet for impressive volumes of direct foreign investmentand more recently as a source of funding of direct foreigninvestment in many other countries.http://ukthesis.org/fvxzy/

The BIT clause addressing specifically the settlement ofdisputes is Article 8 and reads as follows:

 Any dispute between an investor of one Contracting Party andthe other Contracting Party in connection with an investment inthe territory of the other Contracting Party shall, as far aspossible, be settled amicably through negotiations between theparties to the dispute.2. If the dispute cannot be settled through negotiations within sixmonths, either party to the dispute shall be entitled to submit thisdispute to the competent court of the Contracting Partyaccepting the investment.如果通過內(nèi)6個(gè)月的談判，爭(zhēng)議糾紛不能得到解決，那么任何一方的應(yīng)有權(quán)，都要提交給有關(guān)于投資有管轄權(quán)的法院。

If a dispute involving the amount of compensation forexpropriation cannot be settled within six months after resort tonegotiations as specified in Paragraph 1 of this Article, it may besubmitted at the request of either party to the internationalarbitration of the International Centre for Settlement ofInvestment Disputes (ICSID), established by the Convention onthe Settlement of Investment Disputes between States andNationals of Other Sates, signed in Washington D.C. on March18, 1965. Any disputes concerning other matters between aninvestor of either Contracting Party and the other ContractingParty may be submitted to the Centre if the parties to thedisputes so agree. The provisions of this Paragraph shall notapply if the investor concerned has resorted to the procedurespecified in Paragraph 2 of this Article.如果投資者已經(jīng)有所關(guān)注，并且已采取本條第2款規(guī)定的程序，那么本款規(guī)定不適用于這些投資者。 

The Centre shall adjudicate in accordance with the law of theContracting Party to the dispute accepting the investmentincluding its rules on the conflict of laws, the provisions of thisAgreement as well as the generally recognised principles ofinternational law accepted by both Contracting Parties.

The different positions of the Parties with regard to the scopeof Article 8 have focused mainly on the phrase “involving the amountof compensation for expropriation” in Article 8(3). Variations of thisphrase are included in the provisions on settlement of disputes ofmany treaties since the 1980s. In general, the doctrine hasunderstood that such phrase reflects certain degree of distrust orideological unconformity on the part of communist regimes regardinginvestment of private capital, and maybe also certain concern aboutthe decisions of international tribunals on matters such regimes arenot familiar with and over which they had no control. Such wordingseemed to seek certain limitations. However, the exact scope ofsuch limitations is a key issue that must be determined.

不過，在確切的范圍內(nèi)，這樣的限制是必須確定的需要解決的一個(gè)關(guān)鍵問題。