Analysis of the decisions in other arbitration cases

仲裁案件的決定性條件分析

To reach this conclusion, the Tribunal has considered carefullyseveral awards thoroughly explained in prior disputes wherein aninterpretation of the MFN clause was needed. 為了得到這個結論，法庭已仔細考慮多個獎項在這之前的關于糾紛的詳細解釋，其中的一條關于最惠國條款的一種解釋是十分有必要的。
Both Parties providedextensive arguments on the meaning and relevance of such awardsand, to a lesser extent, on the meaning of prior decisions of thePermanent Court of International Justice and the International Courtof Justice. Respondent grounds his arguments mainly in the awardsin Plama and Salini,(155)while Claimant refers to the award inMaffezini, and those derived therefrom.(156)These are well-knowncases and have been analysed in detailed in preceding awards. Forthat reason, we, the Tribunal, will limit ourselves to analyse the keydifferences and concepts particularly relevant for the case we aretrying. In our analysis of Maffezini and more recent awards which ingeneral follow its rationale, we, the Tribunal, underscore thatapplicable dispute settlement clause therein refer to “any dispute”, ina broad sense. Unlike our case, none of these dispute settlementclauses provide limitations to the core categories of disputesincluded.(157)It is logical to infer that, due to the wide range ofdisputes included in those clauses, it would seem unnecessary forthe parties to add any specific wording on the possibility to consentto submit in the future “other disputes” to ICSID arbitration. TheTribunal, therefore, considers that all those cases can bedistinguished easily from the present case.因此，法庭認為，考慮到目前的情況下，以及所有的這些情況，以至于現在對這種情況是都可以很容易加以區分的。

With regard to the awards in Salini and Plama, the Tribunalconsiders that Salini is only indirectly relevant to the circumstancesfound herein for two reasons: first, as in the above-mentioned cases,Article 9 of the BIT between Italy and Jordan refers to “anydisputes”. As indicated earlier, Article 9(2) provides as follows:

In case the investor and an entity of the ContractingParties have stipulated an investment Agreement, theprocedure foreseen in such investment Agreementshall apply .http://ukthesis.org/fvxzy/

 The tribunal's decision in Salini on this key decision had twoeffects. First, it was determined that the dispute in questionconstituted, in fact, a contractual dispute between the parties, i.e. adispute which did not arise out of a violation of the treaty. Secondly,the tribunal concluded that as the treaty had established specificallythe applicability of another procedure for the settlement of disputesunder Article 9(2), that was the procedure to apply. This last groundwas implicit, and the case was indeed decided based on the firstrationale. These circumstances constitute critical differences fromthe present case. 

The Tribunal considers that the situation in the present case iscloser to that in Plama v. Bulgaria, wherein Claimant had arguedthat the MFN clause in Article 3 of the relevant BIT had to beinterpreted so as to allow Claimant first to skip the two preliminarystages agreed for the settlement of disputes, to then replace the arbitral proceeding agreed upon (ad hoc arbitration under theUNCITRAL arbitration rules) with an ICSID arbitration. The Tribunalrefused to allow the use of the MFN clause to introduce a completelynew dispute settlement procedure instead of a “an international adhoc arbitration court”. By doing so, it may be affirmed that thetribunal in Plama actually took in to account the assertions containedin paragraph 63 of the award in Maffezini.(159)Anyhow, following asimilar reasoning, this Tribunal concludes that it may not allowinterpreting the MFN clause of the BIT so as to override the morespecific wording of Article 8(3). For the above reasons, the Tribunaldoes not accept the arguments presented by Claimant with regard tothe interpretation of the MFN clause of the BIT (Article 3). TheTribunal finds that Article 3 cannot be interpreted so as to extend thejurisdiction of the Centre or to be the basis for an independentsource for the competence of the Tribunal.仲裁庭認為，第3條不能被解釋的職權范圍是國際法庭的管轄權擴大的基礎。

Decision221. Based on all the above reasons, the Tribunal herebyunanimously decides as follows:A. That Centre does have jurisdiction and the Tribunal competenceto try the expropriation dispute filed by Claimant under the BIT;B. In accordance with Arbitration Rule 41(4), to schedule thesubsequent proceedings after hearing both Parties;C. To postpone a decision on costs and expenses to a later time ofthe proceedings.對成本和費用的決定推遲，要到以后的時間進行訴訟。