败诉:黑龙江国际经济技术合作公司等诉蒙古政府案

2017-07-08 12:57    发布人:管理员

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       据IAR本月7日报道,久拖不决的黑龙江国际经济技术合作公司等诉蒙古政府案(International Economic & Technical Cooperative Corp. and others v. Republic of Mongolia)已于近日结案,仲裁庭就中蒙BIT中的限制性同意条款作出狭义解释,进而裁定仲裁庭对本案无管辖权。

以下为IAR报道原文:
MONGOLIA PREVAILS IN LONG-RUNNING CHINESE BIT ARBITRATION, AS ARBITRATORS DISTINGUISH THEIR READING OF CONSTRICTED JURISDICTION CLAUSE FROM MORE GENEROUS READINGS IN PRIOR CASES
Jul 07, 2017 | By Luke Eric Peterson

In a new award, an ad-hoc tribunal comprised of Peter Tomka (chair), Yas Banifatemi (claimant’s nominee) and Mark Clodfelter (respondent’s nominee) have declined jurisdiction over a long-running claim by a trio of Chinese investors against the Republic of Mongolia.

The development comes in the case of China Heilongjiang International Economic & Technical Cooperative Corp. and others v. Republic of Mongolia.

The three Chinese investors in the Tumurtei iron ore mine turned to arbitration in 2010 following the cancellation of a key license in 2009.

(The case had been slowed by, among other things, the late-stage resignation of the prior chairman, whose law firm was elsewhere acting in another case, Sanum v. Laos, that raised similar treaty interpretation issues.)

As yet, the arbitral award rendered by the tribunal is not public.

However, a press release issued by the respondent’s counsel on July 5, 2017 has indicated that the three arbitrators were unanimous in their decision to dismiss the case for lack of jurisdiction.

While we have yet to see the award, it appears from this public statement that the tribunal has held that a “narrow” reading of the BIT’s jurisdictional clause – allowing for arbitration only in relation to the amount of compensation due for an established expropriation – is nevertheless consistent with the “effet utile” interpretive principle. (In other similar-type cases, certain tribunals have cautioned against depriving the jurisdictional provisions of similarly-worded treaties of any force or utility by dint of a too-narrow reading.)

Rather than reproduce Mongolian counsel’s press release at further length, we will simply direct readers to it (here).

In due course, we hope to report in detail on the reasoning of the tribunal.

The claimants in this case were represented by Freshfields. Mongolia was represented by Milbank.

附《中蒙BIT》第8.3条:
If a dispute involving the amount of compensation for expropriation cannot be settled within six months after resort to negotiations as specified in paragraph 1 of this Article, it may be submitted at the request of either party to an ad hoc arbitral tribunal. The provisions of this paragraph shall not apply if the investor concerned has resorted to the procedure specified in the paragraph 2 of this Article.

       从上述规定来看,本案与此前谢业深案及北京城建案所涉的中秘、中也BIT同意条款类似,但与前二者仲裁庭做出了广义解释不同的是,本案中仲裁庭对此作出了狭义解释。由于裁决未予公开,其具体理由尚未可知。从被告方法律顾问发表的声明来看,仲裁庭作出狭义解释(即仅允许仲裁涉及既定征收的赔偿金额)似乎是基于条约有效解释原则(the “effet utile” interpretive principle),但细节不明。
本案可能的两点启示:
其一,投资仲裁庭就相同或类似条款在解释方法和结果上的不一致现象依然突出,凸显改革必要。
其二,中国老旧BIT中的限制性同意条款,不利于保护中国海外投资者利益。作为世界第二大资本输出国,宜尽快调整。

整理、点评:武汉大学海外投资法律研究中心 漆彤

分类: 行业动态,投资案例,案例分析

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