| 摘要: | 當地主國境內發生武裝衝突或國內動亂、戰爭或其他如革命、叛亂或暴動等特殊事件，致外國投資者或其投資遭受損失，外國投資者通常主張地主國違反其提供穩定安全的投資環境之國際義務，則地主國是否需對投資者之損失負補償責任？最常被投資者主張的是「完整保障與安全」條款，另外尚有戰亂補償條款，現今雙邊投資協定關於此類特殊情況要求地主國負擔損失補償責任的條款可歸納為兩種規範模式，一為「戰亂損失補償條款」，另一為「武裝衝突或動亂之待遇」條款。但因仲裁庭依具體個案各別適用爭端當事人間特定之投資協定，而這些投資協定相關條款在其特殊事件的適用範圍、補償方法、補償標準與補償金計算等規定又不盡相同。 本文特針對損失補償條款比較現今投資協定之規範模式與條約用語上的差異，並以 AAPL v. Sri Lanka 案與 Pantechniki v. Albania 案為例，觀察仲裁庭對於條約相關實體規定在此類特殊事件中判斷地主國之義務違反、責任範圍、補償方法與標準之推論與分析結果，得知仲裁判斷將因所適用之條約規範模式的不同而可能產生不同結論，最後以 TPP 投資專章對武裝衝突或動亂待遇規範模式為例，提供未來該條款之解釋與適用之建議。
Bilateral investment treaties (BITs) contain several types of clauses dealing with violent situations including armed conflict and civil strife in order to safeguard the interests of investors in these similar situations. Some BITs contain clauses that specifically address wars and other armed conflicts or civil strife. One type of the clause, so called “War Clauses”, merely promises non-discrimination in the treatment of losses incurred through armed conflicts and similar situations, usually contains content as: “A Host State shall accord to investors of the other Contracting Party, and to covered investments, non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife (or war or other armed conflict, a state of national emergency, civil disturbances or any other similar event).” The other type of the clause, so called “Treatment in Case of Armed Conflict or Civil Strife Clause”, goes further and actually promises compensation for losses incurred under these circumstances provided when certain conditions are met. This clause usually contains a positive obligation of restitution or compensation in cases of requisitioning or destruction of investments. However, this obligation is subject to a number of restrictive requirements. And it usually states as “shall provide the investor with restitution, compensation, or both, as appropriate…shall be prompt, adequate, and effective in accordance with (Expropriation Clause), mutatis mutandis.” Some of these treaty clauses have been interpreted and applied by investment tribunals. Whereas the different uncertainty, this article conducts comparative studies on AAPL v. Sri Lanka and Pantechniki v. Albania and finds out that the protection offered to the investors in times of armed conflict or civil strife usually measure largely depend on the availability of favorable treaties upon which the investor can rely and concludes, the current situation is far from uniform and offers a patchwork of treaty provisions that favors some investors in some countries but leave other investors without treaty protection, even though for investors who can rely on treaties, their position is by no means uniform. |
