| 摘要: |
| 平安公司诉比利时案仲裁庭最终以无管辖权为由裁决不予受理。关于管辖权的认定，主要围绕2009年中国与比利时—卢森堡的双边投资协定是否可适用其生效之前的争议展开。仲裁庭先后从条约的解释原则、非溯及既往原则、在先案例和替代性BIT展开，再结合本案，探讨该协定的属时管辖权问题，最后以该协定的众多条款均不能证明其可适用于生效前发生的争议为由，裁决仲裁庭对本案无管辖权。看似有理有据，但在分析过程中逻辑并不严谨，对该协定第8条第(1)款、第(2)款及第10条第(2)款的真实含义也并未作深入探究。其实，该协定能够适用于其生效前已完成通知但尚未进入司法或仲裁程序的争议才是更合理的解释。 |
| 关键词: 平安公司诉比利时案 双边投资协定 溯及力 |
| DOI： |
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| 基金项目: |
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| A Legal Comment on Arbitration for the Case of Ping An v. Belgium |
| DAI Zheng-qing,WU Lan |
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| Abstract: |
| The arbitral tribunal dismissed the suit of Ping An V. Belgium on lack of jurisdiction grounds. With respect to the determination of jurisdiction, they focused on the argument of whether Agreement between the Government of the People’s Republic of China and the Belgium-Luxemburg Economic Union on the Reciprocal Promotion and Protection of Investmentsthat entering into force in 2009 should be applied for the cases before it takes effect. Then they expanded with the interpretations of the treaty principles, the retroactive principle vs. non-retroactive principle, previous cases and alternative BIT. After that, they tried to argue the retroactivity of the Agreement comparing with this case and then concluded that many terms of the Agreement couldn’t approve themselves which could be applied for the case which had taken place before it took effect. With this conclusion, the arbitral tribunal assumed they had no jurisdiction over the case. This verdict seems to be reasonable while the procedure of analyzing isn’t logical. The real content of Article 8 of 2009BIT paragraph 1, paragraph 2, and Article 10, paragraph 2 was not well explored. It is a more reasonable interpretation that the 2009 BIT apply to disputes which have arisen before it came into force, provided that they were not already under judicial or arbitral process. |
| Key words: Ping An vs Belgium bilateral investment treaty retroactivity |
