公平与公正待遇案例分析及IIA条款建议.ppt

Beyond physical harm “Thus protection and full security (sometimes full protection and security) can apply to more than physical security of an investor or its property, because either could be subject to harassment without being physically harmed or seized.” Aguas del Aconquija S.A. and Vivendi Universal v. Argentina (=Vivendi II), Award 2007, para. 7.4.17. Beyond physical harm “[T]he obligation to provide full protection and security is wider than “physical” protection and security. It is difficult to understand how the physical security of an intangible asset would be achieved. In the instant case, “security” is qualified by “legal”. In its ordinary meaning “legal security” has been defined as “the quality of the legal system which implies certainty in its norms and, consequently, their foreseeable application.” Siemens A.G. v. Argentina, ICSID Case No. ARB/02/08, Award, 6 February 2007, para. 303. Violations of FET - Abuse of Power / Coercion As both sides agree, the volume of the requested documents was large, a number of truckloads; moving them would be a substantial and disruptive burden. The SLD simply advised the Investment that the proposal to conduct verification in Portland was “not acceptable”, but gave no reasons why. Pope Talbot v. Canada, NAFTA, 10 April 2002, para. 172. (the Verification Review Episode violated 1105) FET的违反：滥用权力/强制 “双方同意，要求的文件数量达数卡车之多；运送这些文件将会是一个重大而不便的负担。SLD仅通知投资（者）在波特兰当地进行审核“不可接受”，但未给出原因。” Pope Talbot v. Canada, NAFTA, 10 April 2002, para. 172.（） Violations of FET - Abuse of Power / Interference “In the Arbitral Tribunal’s view, the Republic’s public statements at this time constituted an unwarranted interference in this. ” “That the following conduct attributable to the Republic constituted violations of the fair and equitable treatment standard: (i) the public announcement on behalf of the Republic of the termination of the Lease Contract on 13 May 2005;[…]” “The Republic, in effect, interfered with and accelerated the