IAR: TPP投资章节初（粗）读

11月5日，在TPP全文公布以后，IAReporter很快发布了Luke Eric Peterson对TPP投资章节的即时点评，英文全文及要点中文翻译如下：

 

A FIRST GLANCE AT THE INVESTMENT CHAPTER OF THE TPP AGREEMENT: A FAMILAR US-STYLE STRUCTURE WITH A FEW NOVEL TWISTS

 

 

Following today’s release of the full text of the Trans-Pacific Partnership (TPP) agreement, IAReporter have made an initial reading of the agreement’s investment chapter (Chapter 9) and highlight some notable features below.

总体来说，TPP投资章节与近期的美式BIT和FTA相似：如同过去10年那样，对公共关切作出一些让步，诸如提高争端解决程序透明度以及未来引入上诉机制的空头支票。

In broad terms, the agreement’s investment chapter looks familiar – particularly in relation to other recent U.S. investment treaties and FTAs. The agreement makes some of the same familiar concessions to public concern that have been made for the last 10 years, including transparency of dispute settlement processes and lip-service to a possible appellate mechanism that might be elaborated at some future date.

关于实体条款，通过更详细的解释语言继续对某些概念予以澄清：如人们熟知的附件式间接征收定义，以及试图对习惯国际法最低标准加以约束。

In terms of the substantive provisions, these continue to be offset by detailed clarificatory language – including in the now-familiar annex defining indirect expropriation, as well as attempts to yoke the minimum standard to customary international law norms only.

特别值得注意，TPP未规定替代NAFTA，由此可能导致美加墨三国在投资仲裁中挑选法院。（译者注：IELP Blog今天对这一问题也作出了更为详细的分析。）

Of particular note, the treaty does not purport to supplant, for Canada, Mexico and the United States, the existing North American Free Trade Agreement, thus leaving open the prospect of investor-claimants shopping between the two treaties for the most advantageous rights and dispute settlement mechanism.

TPP第29章中类似GATT第20条的“一般例外”不适用于投资章节。public welfare通过征收、非歧视、最低标准等核心义务的细化加以体现。

GATT Article XX exception does not apply to investment norms – instead public welfare motives to be weighed prior to any exceptions analysis

It also appears that U.S. negotiators prevailed in pushing back demands from some countries for a GATT Article XX style exception that would apply to key substantive investment protections, as is done by certain countries (such as Canada and Japan) in many of their investment treaties. While such an Article XX-type exception was written into Chapter 29 of the TPP – and applies to certain of the trade-related chapters – it does not extend to the investment chapter.

Instead, efforts have been made to ensure that public welfare considerations are relevant to the arbitral elaboration of the key obligations – such as expropriation, non-discrimination and the minimum standard – rather than as a possible exception to the application of such obligations. (As we’ve discussed, arbitrators in a recent NAFTA case favoured a similar approach in light of that treaty’s non-inclusion of an Article XX type exceptions clause.)

The effort to integrate public welfare concerns into the drafting of the TPP’s individual treaty obligations is exemplified not only in the now familiar annex that seeks to explain how expropriation should be defined, but also in a footnote to the non-discrimination obligation that similarly clarifies that the conclusion as to whether treatment is accorded in “like circumstances” … “depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives.”

(With respect to non-discrimination, the treaty also contains an annexed “Drafter’s Note on Interpretation of “In Like Circumstances” which elaborates on the shared intent of the parties. The note is lengthy and we don’t purport to summarize it here.)

与典型的美式协定不一致，TPP规定两种情形不构成对MST的违反：与投资者期待不符的国家行为、政府取消资助或补贴。

Thwarted expectations and subsidy changes not in breach of treaty – but what about legitimate investment-backed expectations?

In a departure from the typical U.S. Agreements, the TPP clarifies two categories of alleged mistreatment that do notconstitute a breach of the minimum standard: actions that are inconsistent with an investor’s expectations, and withdrawal or modifications to grants or subsidies (see Articles 9.6.4 and 9.6.5).

Article 9.6.4 certainly seems to rule out the possibility that a state’s mere thwarting of a subjective expectation of an investor can trigger an MST breach.

However, it’s less clear, at first glance, that the clause speaks to situations where so-called legitimate expectations (or, to use the parlance, found elsewhere in the TPP’s Annex 9-B “distinct, reasonable investment-backed expectations”) are at issue and have been thwarted by subsequent government action.

引入利益拒绝条款防止免费搭车，这个是晚近趋势；同时引入一项特殊的利益拒绝条款防止当事人利用TPP挑战缔约方的烟草控制措施，这个有点扯。IELP博客今天对此也有讨论，比如29.5是否属于自裁决条款，即谁来判断一项措施属于"tobacco control measure"? 评论者认为“electing”用语似乎表明它是一个自裁决条款；评论者还提出了很多问题诸如Are e-cigarettes a product "made or derived from tobacco"? 最后说“It would be a lot of fun if some day there is a case that explores some of these issues. So far there have only been two ISDS challenges of this kind of measure, so it seems unlikely any such cases are coming, but you never know.”

Denial of benefits clause included, plus a denial of benefits provision in case of tobacco control measures

As with many U.S. and Canadian agreements there is a denial of benefits clause that allows a party to deny benefits of the chapter if an enterprise is owned or controlled by someone from a non-party to the TPP (or by a national of the “host country”) and has no substantial business activities in another TPP nation.

Additionally, a much ballyhooed exclusion relating to tobacco products regulations is contained in Article 29.5 of the treaty, and turns out to be cast as another denial of benefits provision under which state-parties can elect in advance to deny benefits to claims “challenging a tobacco control measure”.* Indeed, states can elect to do so even after an arbitral claim has emerged, and such an election will terminate such proceedings.

成员方政府发行的公债属于保护性的投资，对于政府拖延或拒绝支付行为，投资者要想起诉殊为不易。

Public debt claims subject to qualifications and exceptions

Interestingly, Annex 9-G of the investment chapter notes that the parties “… recognise that the purchase of debt issued by a Party entails commercial risk.” Claims for default or non-payment of debt are expressly contemplated under the treaty’s ISDS mechanism, but claimants must meet a burden of proving that such default or non-payment constitutes a breach of one of the treaty’s substantive investment obligations.

Paragraph 2 of the same annex takes a more stringent approach to restructurings of debt, specifically those that are “negotiated restructurings”** , leaving a path only for claims of discrimination in relation to such measures. (This particular provision of the treaty does not apply to the U.S. and Singapore, according to a footnote to the agreement.)

Notwithstanding the treaty’s seeming affirmation that public debt can be considered a protected investment, there may be debate as to whether arbitration under the ICSID Convention can be used for such claims. As we’ve reported, one recent ICSID tribunal has split with respect to whether Greek bonds – whatever their status under an investment treaty – could be considered an arbitrable investment for purposes of the ICSID Convention.

在违反投资合同的可仲裁性问题上，其他谈判方满足了美国需要。

Parties hew to U.S. desire for breaches of “investment agreements” to be arbitrable under TPP’s ISDS mechanism – where such contracts provide for locally-seated or less-prominent arbitration rules

The treaty’s investor-state dispute settlement (ISDS) mechanism provides for arbitration under the UNCITRAL, ICSID and ICSID Additional Facility rules, as well as under other processes if both parties agree to use some other mechanism (for e.g. arbitral rules of other institutions such as the International Chamber of Commerce).

In a notable departure for Canada and various other non-U.S. parties to the TPP, the agreement permits arbitration not only of claims for breach of the treaty’s substantive investment protections, but also for breach of an investment authorization or investment agreement (i.e. certain types of state-contracts).

However, in a further novel twist, the treaty also shows some (limited) deference to certain forum-selection clauses that might be contained in such investment agreements (or contracts). Annex 9-L of the treaty thus prohibits arbitration of claims for breach of an investment agreement/contract’s obligations pursuant to the ISDS mechanism in the TTP if the relevant state-contract already provides for international arbitration under certain prominent rules such as the UNCITRAL, ICSID, ICC or LCIA rules and such contract-based arbitration would take place outside the territory of the respondent and in a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.***

At first glance, the flip-side of this provision seems to be that no such deference is shown to state-contracts that provide for arbitration under less prominent rules – say those of the Vienna or Stockholm Chambers of Commerce, and other less known forums. Similarly the TPP seems to show no deference to forum selection clauses that prescribe arbitration within the host country (for e.g. an investment agreement with Canada that calls for Canada to be the legal seat of arbitration). The dispute resolution provisions of both of these types of contracts thus appear vulnerable to circumvention by a claimant who wishes to instead sue for breach of that investment agreement under the rubric of the TPP’s investor-state arbitration mechanism, rather than the given contract’s dispute settlement rules.

在裁决公布之前，争端方有机会就仲裁裁决发表意见。

Disputing parties given chance to comment on draft rulings prior to their being rendered

The treaty’s Article 9.22.10 introduces another layer into the arbitral procedure whereby a disputing party can request that arbitrators offer copies of draft decisions and awards on liability – for comment by the parties – thus adding up to another 105 days to the process.

投资者基于投资合同或投资授权而提起仲裁，可能面临反诉；如仅基于TPP实体义务条款提起，则无反诉之虞。

Counterclaims in disputes rooted in contracts or authorizations

When an investor makes a claim for breach of an investment agreement or of an investment authorization, the dispute settlement chapter stipulates that such investors open themselves up to counterclaims “in connection with the factual and legal basis of the claim or rely on a claim for the purpose of a set off against the claimant.”

This provision does not appear to open the prospect of counter-claims if the investor is merely claiming for breach of the substantive obligations in the TPP investment chapter (i.e. expropriation, MST, etc.)

因“打算进行投资”而提起的诉讼，损失范围仅限于实际投入，不包括因丧失投资机会而可能带来的预计损失。

Attempt to limit damages for investments thwarted in the making

For claims that allege a breach arising out of an “attempt to make an investment”, Article 9.28.4 seeks to limit damages to those sustained in the attempt to make the investment – rather than projected losses arising out of the thwarted opportunity.

不支持惩罚性赔偿或强制履行。

No punitive damages or specific performance

In common with U.S. and Canadian-style agreements, the treaty prohibits orders of specific performance – i.e. enjoining a state to do or refrain from something – and awards of punitive damages.

ICSID秘书长在指派仲裁员方面发挥重要作用。

ICSID SG plays important appointing role in arbitration cases

Following the path of other agreements such as the NAFTA, the Secretary-General of the ICSID is given the important role of appointing arbitrators in cases where the parties fail to make their own appointments within the time allotted or can’t agree on who should chair a given case.

TPP既无仲裁员行为守则，亦未包含上诉机制。

No clarity on arbitrator codes of conduct and no appellate mechanism

Despite negotiating for seven years, the parties did not agree to any codes of conduct for investment arbitrators, nor an appellate mechanism.

The agreement leaves open, for now, whether a code of conduct prescribed for trade dispute panels under the TPP should also be extended to investment arbitration tribunals. Instead, prior to the entry into force of the TPP, the parties are to “provide guidance” on this code’s application to ISDS cases, and to clarify if further modifications are needed for the ISDS context.

As for appellate mechanisms, the treaty merely notes that if such a mechanism is developed elsewhere, under other institutional arrangements, “… the Parties shall consider” whether awards rendered under the TPP’s ISDS mechanism should be subject to such an appellate mechanism.

 

* Tobacco control measures are defined in a footnote to Chapter 29 as follows: “… a measure of a Party related to the production or consumption of manufactured tobacco products (including products made or derived from tobacco), their distribution, labeling, packaging, advertising, marketing, promotion, sale, purchase, or use, as well as enforcement measures, such as inspection, recordkeeping, and reporting requirements. For greater certainty, a measure with respect to tobacco leaf that is not in the possession of a manufacturer of tobacco products or that is not part of a manufactured tobacco product is not a tobacco control measure.”

** The treaty’s definitions stipulate that “negotiated restructuring means the restructuring or rescheduling of a debt instrument that has been effected through (a) a modification or amendment of that debt instrument, as provided for under its terms, or (b) a comprehensive debt exchange or other similar process in which the holders of no less than 75 per cent of the aggregate principal amount of the outstanding debt under that debt instrument have consented to the debt exchange or other process;”

*** If the arbitration takes place under the ICSID Convention, Annex 9-L doesn’t require that the legal seat be in a NY Convention state and outside of the host country. The obvious reason for this is that ICSID Convention arbitrations are insulated from domestic review in any case.