194
CHAPTER 9
INVESTMENT
Section A
Article 9.1: Definitions
For the purpos of this Chapter:priorto
Centre means the International Centre for Settlement of Investment Disputes (ICSID) established by the ICSID Convention;
claimant means an investor of a Party that is a party to an investment dispute with another Party. If that investor is a natural person, who is a permanent resident of a Party and a national of another Party, that natural person may not submit a claim to arbitration against that latter Party;
covered investment means, with respect to a Party, an investment in its territory of an investor of anoth
er Party in existence as of the date of entry into force of this Agreement for tho Parties or established, acquired, or expanded thereafter;
disputing parties means the claimant and the respondent;
disputing party means either the claimant or the respondent;
enterpri means an enterpri as defined in Article 1.3 (General Definitions), and a branch of an enterpri;
enterpri of a Party means an enterpri constituted or organid under the law of a Party, or a branch located in the territory of a Party and carrying out business activities there;1
freely usable currency means “freely usable currency” as determined by the International Monetary Fund under its Articles of Agreement;
ICC Arbitration Rules means the arbitration rules of the International Chamber of Commerce;
1 For greater certainty, the inclusion of a “branch” in the definitions of “enterpri” and “enterpri of a Party” is without prejudice to a Party’s ability to treat a branch under its laws as an entity that has no independent legal existence and is not parately organid.
194
第9章
投资
A节
第9.1条定义
就本章而言：
中心指根据《解决投资争端国际中心公约》设立的解决投资争端国际中心(ICSID)；
申请人指与另一缔约方产生投资争端的一缔约方的投资者。如该投资者为自然人，而该自然人同时为一缔约方的永久居民和另一缔约方的国民，则该自然人不得针对该后一缔约方提出仲裁请求；
涵盖投资，对于一缔约方，指截至本协定对相关缔约方生效之日在一缔约方领土内存在的另一缔约方投资者的投资，或在此后设立、获得或扩大的投资；
争端双方指申请人和被申请人；
争端一方指申请人或被申请人；
企业指如第 1.3条(一般定义)中所定义的一企业和一企业的分支机构；
一缔约方的企业指根据一缔约方的法律组成或组织的企业，或位于一缔约方领土内并在该领土内开展经营活动的分支机构；1
可自由使用货币指由国际货币基金组织根据《国际货币基金组织协定》确定的“可自由使用货币”；
ICC仲裁规则指国际商会的仲裁规则；
1 为进一步明确，“企业”和“一缔约方的企业”的定义包括“分支机构”不损害一缔约方根据其法律将分支机构视为不具有独立法律存在且不是单独组织的一实体的能力。
195
ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of other States, done at Washington, March 18, 1965;
Inter-American Convention means the Inter-American Convention on International Commercial Arbitration, done at Panama, January 30, 1975;
investment means every ast that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:
(a) an enterpri;
(b) shares, stock and other forms of equity participation in an
enterpri;
(c) bonds, debentures, other debt instruments and loans;2, 3
(d) futures, options and other derivatives;
premiumquality(e) turnkey, construction, management, production, concession,
revenue-sharing and other similar contracts;
(f) intellectual property rights;
(g) licences, authorisations, permits and similar rights conferred
pursuant to the Party’s law;4 and
2 Some forms of debt, such as bonds, debentures, and long-term notes, are more likely to have the characteristics of an investment, while other forms of debt, such as claims to payment that are immediately due and result from the sale of goods or rvices, are less likely to have such characteristics.
3 A loan issued by one Party to another Party is not an investment.
4 Whether a particular type of licence, authorisation, permit or similar instrument (including a concession to the extent that it has the nature of such an instrument) has the characteristics of an investment depends on such factors as the nature and extent of the rights that the holder has under t
he Party’s law. Among such instruments that do not have the characteristics of an investment are tho that do not create any rights protected under the Party’s law. For greater certainty, the foregoing is without prejudice to whether any ast associated with such instruments has the characteristics of an investment.
195
ICSID附加便利规则指《解决投资争端国际中心秘书处关于程序管理的附加便利规则》；
chris daughtry
ICSID公约指1965 年3 月18 日订于华盛顿的《解决国家和他国国民之间投资争端公约》；
美洲公约指1975 年1 月30 日订于巴拿马的《美洲国际商事仲裁公约》；
投资指一投资者直接或间接拥有或控制的具有投资特征的各种资产，此类特征包括资本或其他资源的投入、获得收入或利润的预期或风险的承担等。投资可采取的形式包括：
(a)一企业；
(b)一企业中的股份、股票和其他形式的参股；
(c)债券、无担保债券、其他债务工具和贷款；2,3
(d)期货、期权和其他衍生品；
(e)交钥匙、建设、管理、生产、特许权、收入分成及
其他类似合同；
(f)知识产权；
(g)根据该缔约方法律授予的批准、授权、许可和其他
类似权利；4以及
2 一些形式的债务，例如债券、无担保债券和远期票据更可能具有投资特征，而其他形式的债务，例如源于货物或服务销售而产生的立即到期的支付请求权，则不大可能具有投资特征。
3一缔约方向另一缔约方提供的贷款不属于投资。
4一特定类型的批准、授权、许可或类似文件(包括特许权，只要其具有此种文件的性质)是否具有投资特征，取决于根据缔约方的法律持有者享有权利的性质和范围等因素。此类文件中不具有投资特征的是那些不创设受缔约方法律保护的任何权利的文件。为进一步明确，前述规定不影响与此类文件相联系的任何资产是否具有投资特征。
196
(h) other tangible or intangible, movable or immovable property, and
动画片美猴王片尾曲related property rights, such as leas, mortgages, liens and
pledges,
but investment does not mean an order or judgment entered in a judicial or administrative action.
investment agreement means a written agreement5that is concluded and takes effect after the date of entry into force of this Agreement6 between an authority at the central level of government7of a Party and a covered investment or an investor of another Party and that creates an exchange of rights and obligations, binding on both parties under the law applicable under Article 9.25.2 (Governing Law), on which the covered investment or the investor relies in establishing or acquiring a covered investment other than the written agreement itlf, and that grants rights to the covered investment or investor:
(a) with respect to natural resources that a national authority controls,
luciditysuch as oil, natural gas, rare earth minerals, timber, gold, iron orelike crazy
and other similar resources,8including for their exploration,
extraction, refining, transportation, distribution or sale;
公布英文
机制英文5 “Written agreement” refers to an agreement in writing, negotiated and executed by both parties, whether in a single instrument or in multiple instruments. For greater certainty:
英汉辞典(a) a unilateral act of an administrative or judicial authority, such as a permit,怎样挽回丈夫
licence, authorisation, certificate, approval, or similar instrument issued by a
Party in its regulatory capacity, or a subsidy or grant, or a decree, order or
judgment, standing alone; and
(b)an administrative or judicial connt decree or order,
shall not be considered a written agreement.
6 For greater certainty, a written agreement that is concluded and takes effect after the entry into force of this Agreement does not include the renewal or extension of an agreement in accordance wi
th the provisions of the original agreement, and on the same or substantially the same terms and conditions as the original agreement, which has been concluded and entered in force prior to the entry into force of this Agreement.
7 For the purpos of this definition, “authority at the central level of government” means, for unitary states, an authority at the ministerial level of government. Ministerial level of government means government departments, ministries or other similar authorities at the central level of government, but does not include: (a) a governmental agency or organ established by a Party’s constitution or a particular legislation that has a parate legal personality from government departments, ministries or other similar authorities under a Party’s law, unless the day to day operations of that agency or organ are directed or controlled by government departments, ministries or other similar authorities; or (b) a governmental agency or organ that acts exclusively with respect to a particular region or province.
8 For the avoidance of doubt, this subparagraph does not include an investment agreement with respect to land, water or radio spectrum.
