投資人對地主國仲裁的前置程序之探討－－以等待期間條款為中心

Waiting Period as a Procedural Requirement Prior to the Initiation of Investor-State Arbitration

當前國際投保協定（IIA）是作為國家與他國國民投資爭端公約（ICSID Convention）架構下提供投資人對地主國仲裁（investor-state arbitration）的主要解決機制，且多半要求提交仲裁前須先踐行特定前置程序，其中等待期間（waiting period）條款要求爭端雙方透過協商達成和解；無法和解始得仲裁。此種條款性質與效力攸關投資人程序利益；若等待期間屬強制規範，投資人未待協商談判期間屆滿即逕行提交仲裁，可能遭仲裁庭以「未遵循仲裁前置程序，仲裁庭欠缺管轄權」為由駁回。實務上，仲裁庭對此見解分歧，欠缺法安定性。若等待期間條款屬強制規定，投資人得否透過最惠國待遇（MFN）條款，援用第三方投保協定下對提交仲裁限制較寬鬆之規範而越過仲裁前置程序，亦對投資人程序利益有重大影響。

Most of the international investment agreements (IIAs) such as bilateral or multilateral investment agreements (BITs/MITs) as well as investment chapter in free trade agreements (FTAs) provide investor-state arbitration as primary means of investment dispute resolution under the framework of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States; (ICSID Convention). Many of these IIAs require pre-arbitration procedural conditions to be satisfied in order to initiate arbitration. Among those procedures, “waiting period” demands the disputing parties to firstly attempt to settle the disputes through direct negotiation; disputes could be submitted to arbitration only if they could not be settled within a specific period. The characteristic and legal effect of such waiting period play a crucial part to the procedural interest of the investors. If an arbitral tribunal considers it as mandatory, early submission to arbitration which violates the waiting period might result in the dismissal of the claims based on lack of jurisdiction. Cases like Ronald S. Lauder v. The Czech Republic and Enron v. Argentina held contrary opinions in this regard. As the principle of stare decisis is generally not applicable in international arbitration, it brings uncertainty and instability to investors and hinders their procedural interests. In addition, if a tribunal considers waiting period as mandatory, could the investor-claimant relies on the Most Favored Nation (MFN) clause to refer to a less restrict pre-arbitration treatment contained in a third party IIA in order to bypass the waiting period under the current IIA? The case law, as demonstrated in Maffezini and Saline v. Jordan is also inconsistent. These issues deserve further analysis so that recommendations could be given to government concerning future IIAs negotiation and that assistance could be provided to Taiwanese investors for their procedural protection.