Uzbekistan's New Bilateral Investment Treaty Standpoint: In Case of Uzbekistan-Turkey bit (2018) by F. Muminov and J. Górski About tdm tdm
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Uzbekistan s New Bilateral Investment Tr
in connection of investment
of investor. However, it only covers the size, conditions and order of the payment of the compensation linked with expropriation rather than all claims related to expropriation. It is highly likely that such narrow formulation was inspired by the USSR (Union of Soviet Socialist Republics) Model BIT. The main feature of the USSR Model BIT was a limited scope of investors’ substantial and procedural rights. From the procedural perspective, it provided limited access to ISDS. 34 Even nowadays, most of Russia’s and China’s BITs follow this approach. 35 One could question whether the concept of expropriation under this BIT is strictly confined to the size, conditions and order of the payment of the compensation of expropriation. A perusal of investment arbitration awards indicates the lack of consensus on the interpretation of such narrowly formulated ISDS clauses. The tribunal in Berschader vs Russia stated that wording “disputes concerning the amount and method of compensation” can be construed as restricting the scope of the consent to international investment arbitration in the light of Russian BIT practice and policy. The tribunal also noted, in support of interpreting the narrow formulation of the ISDS clause, that not only should the whole context of BIT be evaluated, but also the host country’s investment policy and intention to define the scope of consent should be closely considered. 36 In RosInvest vs Russia case, the tribunal adopted a similar approach. The tribunal pointed out that: “in order to give an ordinary meaning to that qualification, it can only be understood as a limitation of the jurisdiction conferred by that clause. Though no documents from the negotiation of the BIT have been produced, the Parties including the Claimant agree that the rather complicated wording in Article 8 presented a compromise between the UK’s intention to have a wide arbitration clause and the Soviet intention to have a limited one. If that is so, it is hard to arrive at an interpretation all the same that the clause is so wide as to include all aspects of an expropriation… Therefore the Tribunal 34 Andrea M Steingruber, Consent in International Arbitration (OUP 2012) 74. 35 For example, art 8 of UK-Soviet BIT contains narrow formulation of investor-state dispute settlement clause to reference to “ the amount and payment of compensation”. See Anatole Boute, Russian Electricity and Energy Investment Law (Brill Nijhoff 2015) 572. 36 Vladimir Berschader and Moise Berschader v. The Russian Federation, SCC, Case No. 080/2004, paras.150- 157. 10 concludes that the second jurisdictional clause does equally not confer jurisdiction on this Tribunal over the occurrence or the validity of an expropriation.” 37 However, the tribunal in the Renta 4 S.V.S.A vs Russia deviated from an approach adopted in the above cases. The tribunal found that the ISDS clause is not considered in the context of expropriation based on the restrictive language, stating that: “The arbitrators are, therefore, not entitled to determine generally whether Russia's actions contravened its "legislation" on nationalization and expropriation. They may, however, assess whether Russia's actions breached international law by depriving the claimants of adequate compensation for the dispossession of which they complain.” 38 In light of the above awards and international investment arbitration practice, it is highly likely that reference to the size, conditions and order of the payment of the compensation of expropriation in the Uzbekistan-Turkey BIT cannot be interpreted as a narrow formulation of the ISDS clause. The main reason for this is that Uzbekistan’s BIT-related practice and policy has not been in line with such narrow interpretation. From this perspective, the scope of consent in the Uzbekistan –Turkey BIT may encompass any act of expropriation. Furthermore, the application of the most favored nation clause is not possible in order to expand the narrow formulation of the investor-state dispute settlement clause. Because the Uzbekistan-Turkey BIT (2018) contains a special provision 39 related to the scope of application of the most favored nation clause that the excludes investor-state investment dispute settlement clause. To be more precise, the scope of MFN clause is limited in accordance with art 4/3 of the Uzbekistan-Turkey BIT. 3 .2. Cooling off Period The Uzbekistan –Turkey BIT sets a 6 months’ waiting period which needs to lapse before investors can bring cases to international arbitration. The rationale of this provision is to allow foreign investors and the host country to settle the dispute in its early phase out of arbitration court. As a rule, the foreign investor is not required to exhaust local remedies under a typical BIT. Once the cooling off has expired, the foreign investor can go to international arbitration. 40 However, this rule is tempered where investment disputes are at least partially subjected to local remedies, like under art 10(5) of the Uzbekistan-Turkey BIT providing that: “The host Contracting Party shall be entitled to request from disputing investor to resort to domestic administrative review procedures established by the laws and regulations of the State of that Contracting Party, before submitting the dispute to international arbitration. In any case, this will not impair the disputing investor to resort to forums mentioned in paragraph 4 of this Article whether these review procedures are finalized or not.” 37 RosInvestCo UK v. Russia, Arbitration Institute of the Stockholm Chamber of Commerce, Case No. Arbitration V 079/ 2005, Award on Jurisdiction, para.110-118. 38 Renta 4 S.V.S.A vs Russia SCC Case Number 24/2007, Award on Preliminary Objections of 20 March 2009, para 45. 39 In accordance with article 4(3)(c) of Uzbekistan-Turkey BIT: “The most favored nation treatment provisions of shall not apply to settlement of disputes between one Contracting Party and investors of the other Contracting Download 0.6 Mb. Do'stlaringiz bilan baham: |
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