关于国际争端诉讼过程中证据和指控方面的探讨——澳洲留学生法律作业
02-12, 2013
Summary of Facts and Allegations 证据和指控概要
This difference arose from alleged violations to the Agreementbetween the Government of the Republic of Peru and theGovernment of the People's Republic of China这种差异是由于涉嫌侵犯秘鲁共和国政府和中华人民共和国政府之间的协议造成的。
concerning theEncouragement and Reciprocal Protection of Investments (“Peru-China BIT” or “Treaty”) that affected the investment made by Mr.Tza Yap Shum (or “Claimant”) in TSG Peru S. A. C. (or “TSG”) aPeruvian Company in the business of producing fish-based foodproducts and export thereof to Asian markets. The Claimant statesthat TSG was a successful and growing company.索赔的种种迹象表明TSG是一个成功的和不断成长的公司。
concerning theEncouragement and Reciprocal Protection of Investments (“Peru-China BIT” or “Treaty”) that affected the investment made by Mr.Tza Yap Shum (or “Claimant”) in TSG Peru S. A. C. (or “TSG”) aPeruvian Company in the business of producing fish-based foodproducts and export thereof to Asian markets. The Claimant statesthat TSG was a successful and growing company.索赔的种种迹象表明TSG是一个成功的和不断成长的公司。
In 2004, the Peruvian Tax Administration (or “SUNAT”) started anumber of actions which, according to Claimant, ended updestroying TSG business operations and economic viability.Claimant alleged that the immediate cause of such impact on thecompany was the unlawful and arbitrary tax lien on the company'sbank accounts which precluded the company from operating withoutdisruption. Based on such circumstances, Claimant said that hisrights had been violated according to the following articles of thePeru-China BIT:1. “Requirement of fair and equitable treatment to investments;2. “Requirement of protection to investments”3. “Requirement of compensating in case of expropriatory orsimilar. measures”4. “Requirement of allowing the transfer of capital and earnings.”
The Republic of Peru refused denied Claimant's allegation andobjected the jurisdiction of the Centre jurisdiction and thecompetence of the Tribunal. Respondent presented the followingobjections:a. Claimant is not protected under the Peru-China BIT.b. The dispute does not relate to an investment qualifying as suchc. The Government of Peru did not give its consent to submit thedispute to arbitration. andd. Claimant has failed to assert and expropriation claim.
The Tribunal will proceed to examine each of these objections.法庭审判将继续进行，以检查这些反对意见。
Applicable Law适用的法律
The law applicable to this dispute has not been a matter ofdiscrepancy between the Parties. 这一争端的法律适用一直没有缔约方之间的差异问题上。
This disputed has been submittedto this Tribunal pursuant to a request for arbitration based on thePeru-China BIT. Such Treaty provides, in the relevant parts, for arbitration by the Centre (International Centre for Settlement ofInvestment Disputes - ICSID) established by the Convention on theSettlement of Investment Disputes between States and Nationals ofOther States (ICSID Convention) which became effective on 14October 1966. In addition, the Peru-China BIT establishes that theapplicable law shall include be the law in force of the ContractingParty to the dispute that accepts the investment, including the rulesgoverning the conflict of laws, the provisions of the Peru-China BIT,and the generally accepted principles of international accepted byboth Contracting Parties。
This disputed has been submittedto this Tribunal pursuant to a request for arbitration based on thePeru-China BIT. Such Treaty provides, in the relevant parts, for arbitration by the Centre (International Centre for Settlement ofInvestment Disputes - ICSID) established by the Convention on theSettlement of Investment Disputes between States and Nationals ofOther States (ICSID Convention) which became effective on 14October 1966. In addition, the Peru-China BIT establishes that theapplicable law shall include be the law in force of the ContractingParty to the dispute that accepts the investment, including the rulesgoverning the conflict of laws, the provisions of the Peru-China BIT,and the generally accepted principles of international accepted byboth Contracting Parties。
Finally, it is recognised that the jurisdiction of the Centre isgoverned by Article 25(1) of the ICSID Convention, whichestablishes as follows:(1) The jurisdiction of the Centre shall extend to any legal disputearising directly out of an investment, between a ContractingState (or any constituent subdivision or agency of a ContractingState designated to the Centre by that State) and a national ofanother Contracting State, which the parties to the disputeconsent in writing to submit to the Centre. When the partieshave given their consent, no party may withdraw its consentunilaterally.http://ukthesis.org/fvxzy
Competence of the Tribunal to determine its own competence从法庭的管辖权方面，来确定自己的能力
According to paragraph 17 of Procedural Order No. 1, theParties and the Tribunal agreed that first there would be aJurisdiction stage upon completion whereof the Tribunal shoulddecide on its Jurisdiction pursuant to Article 41 of the Conventionand Rule 41 of ICSID Arbitration Rules, as well as on generallyaccepted principles of international arbitration.
Burden of Proof举证责任
The broad acceptance of arbitration as a way to settle disputesamong investor States does not override supersede eliminate thebasic requirement prior to arbitration: 广泛接受仲裁的方式，以解决投资国之间存在的国际争端，但是这些方式是不会覆盖之前取代消除基本要求的仲裁结果的。
an agreement of the parties toarbitrate.(2)As maintained by the Permanent Court of InternationalJustice in the Factory at Chorzów case, consent should be provenby a preponderance of the evidence.(3)While Respondent andcertain case law relevant to the matter have suggested that theburden of proof regarding the existence of an agreement onparticular jurisdiction should be “clear and unambiguous,”(4)theTribunal considers that the best option consists in considering thatthe provisions of treaties dealing with jurisdiction matters, constituteelements of total agreement between the parties. Any provision in atreaty, and specifically in the Peru-China BIT, constitutes a legal andsolemn pledge of a sovereign government. The Tribunal considersthat the only appropriate way to observe adequately suchexpressions is by analysing objectively and comprehensively thewording of such agreement.(5)In this proceeding, the positionadopted by case law lead as to conclude that the appropriatestandard to interpret the rules on settlement of disputes and other provisions in a treaty on jurisdiction matters is identical to thatapplicable to other provisions in the Peru-China BIT – neither morenor less restrictive.
an agreement of the parties toarbitrate.(2)As maintained by the Permanent Court of InternationalJustice in the Factory at Chorzów case, consent should be provenby a preponderance of the evidence.(3)While Respondent andcertain case law relevant to the matter have suggested that theburden of proof regarding the existence of an agreement onparticular jurisdiction should be “clear and unambiguous,”(4)theTribunal considers that the best option consists in considering thatthe provisions of treaties dealing with jurisdiction matters, constituteelements of total agreement between the parties. Any provision in atreaty, and specifically in the Peru-China BIT, constitutes a legal andsolemn pledge of a sovereign government. The Tribunal considersthat the only appropriate way to observe adequately suchexpressions is by analysing objectively and comprehensively thewording of such agreement.(5)In this proceeding, the positionadopted by case law lead as to conclude that the appropriatestandard to interpret the rules on settlement of disputes and other provisions in a treaty on jurisdiction matters is identical to thatapplicable to other provisions in the Peru-China BIT – neither morenor less restrictive.