时间:2014-05-24 00:17 来源:中国对外承包工程商会 点击:
(承包商会法律服务平台：King & Wood Mallesons/金杜律师事务所)
The current troubles in Vietnam have prompted us to remind Contractors that they may be able to rely on the ASEAN-China Free Trade Agreement to commence investor-state dispute resolution. This FTA contains a number of protections, including: fair and equitable treatment, full protection and security, expropriation and national treatment. As we understand it from media reports, the current scenario seems most likely to give rise to a breach of the full protection and security protection. International tribunals have held that host governments are required to take all measures necessary to ensure the physical protection and security of protected investments. For example, in AAPL v Sri Lanka, Sri Lanka was found to have breached this protection given that it was aware that an investment was at risk from looting, and it took no steps to prevent the looting from occurring. Liability is increased if a government contributed to the social unrest which led to the rioting and should have been aware of the risk of damage to investors.
If the extent of damage caused to Chinese investments is such that the investment can no longer continue, the investors could also claim compensation for expropriation.
Given the cost and complexity of commencing investor-state arbitration, smaller companies may be less inclined to do so. The exceptions might be, however, if these smaller investors brought a joint claim against the Vietnamese Government so that the cost of doing so is shared amongst several investors. This is possible where each investor alleges the same breach of the relevant investment treaty arising from the same facts. The potential investor claims may meet these criteria, even if each investor has suffered a different scope of loss. Examples of where ‘joint’ or ‘mass’ claims have be run are: Abaclat and Others v. Argentine Republic, ICSID Case No. ARB/07/5 and Piero Foresti, Laura de Carli & Others v. The Republic of South Africa, ICSID Case No. ARB(AF)/07/01. Further, it may be possible to have the cost of the investors’ claims funded by a third party ‘litigation funder’. Litigation funders agree to pay the cost of the arbitration in return for a percentage of the award on success. In some cases, the investor’s loss may be covered by insurance, in which the insurer might pay compensation directly to the investor and then take over the investor’s claim. In any case, investment-treaty dispute resolution may become a viable option for smaller investors.
考虑到成本的问题以及投资者和东道国仲裁程序启动的复杂性，较小的公司可能并不倾向于去这样做。但有例外是，如果这些较小的投资者向越南政府提起共同索赔，则成本将会由投资者们各自分摊。如果各投资者是基于相同的事实而对违反相关投资协议的相同的违约行为提出索赔，则共同索赔是有可能。即使每个投资者的损失范围不同，但是潜在的投资者索赔还是可能满足这些条件。涉及 “共同索赔”或“集体索赔”的案例有：“Abaclat 和其他方诉阿根廷共和国，国际投资争端解决中心（ICSID） 案卷号 ARB/07/5”、“Piero Foresti, Laura de Carli 和其他方诉南非共和国, 国际投资争端解决中心 （ICSID）案卷号 ARB(AF)/07/01”。此外，可能出现投资者的索赔费用由作为第三方的“诉讼资助方”来承担。诉讼资助方同意支付仲裁费用，并在案件胜诉时收取一定比例的赔偿金作为回报。在一些案件中，投资者的损失可以由保险覆盖，保险公司可以直接向投资者支付赔偿金，之后保险公司再就投资者索赔进行代位求偿。不管怎样，投资协定争端解决机制对小投资者而言可以是一个切实可行的方案。
The China-Vietnam bilateral investment treaty provides similar protections to the ASEAN-China FTA but limits the rights of investors to commence arbitration to disputes concerning compensation for expropriation. Accordingly, the ASEAN-China FTA would appear to be the preferred treaty for investors.