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第六章 結論
本文梳理國際投資仲裁庭對合法徵收、非法徵收及非屬徵收之條約違反三類 型案件適用公平價值標準後，發現投資保障條約裡對於徵收補償的公平市場價值 補償標準，射程範圍僅及於雙方僅就補償金額有爭議之合法徵收類型，至於後兩 者，因涉及國家不法行為，屬於損害賠償的問題，若逕適用條約徵收條款的補償 標準，無法反應徵收後系爭資產價值上升及後續附隨損害，對投資人有失公允。
國際法裡對國家不法行為的損害賠償為完全填補損害原則，對於成立非法徵 收及非屬徵收條約違反的爭議，本文認為仲裁庭應適用《ILC Articles》所明文的 損害填補原則。儘管透過該原則，在決定損害賠償金時，仍可合理適用公平市場 價值作為計算標準，但應注意合乎系爭投資標的公平市場價值標準的賠償，並非 等同於合乎完整損害填補原則的賠償。
若欲達到完整損害填補的賠償金，在非法徵收類型的案件，於系爭投資於徵 收後價值上升時，應以仲裁判斷作成時，而非徵收發生時為公平市場價值評價時 點，並考量其他因徵收而發生的附隨損害或支出。
在非屬徵收的條約違反案型，則另外應先審查系爭不法行為所致之投資的損 害結果，究竟是否為重大且終局性？若是，則可按公平市場價值標準定其賠償金；
若否，則僅能就投資人能舉證有因果關係之實際損失進行賠償。即便可以適用公 平市場價值標準，也僅能就系爭違法措施所致投資標的公平市場價值下跌的部分 進行賠償。若未注意上述問題，則適用公平市場價值標準所算出的賠償金即很有 可能超出投資人的損害，造成對地主國不公平之結果。
此外，儘管公平市場價值係一客觀抽象之標準，但其操作絕非機械性，適用 時仍得考量投資人的與有過失、其應承擔的商業風險及地主國如處於經濟危機等 必要性抗辯等國際法上損害賠償的酌減因素，方才能使公平市場價值名符其實。
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就評價方法的問題上，仲裁庭採用現金流量折現法去評價企業投資的公平市 場價值，標示著投資仲裁愈來愈能實質對投資人因地主國違約行為所致之獲利損 失進行評價與賠償，是對投資人進一步的保護；也標示者國際投資法上補償與損 害賠償金的計算，能朝向更客觀、更透明且更具衡平性的方向邁進。
從而本文認為一但系爭企業其獲利損失具一定程度的確定性，亦具永續發展 價值，仲裁庭即應採現金流量折現法為主進行評價，不得逕自以申請人提出的獲 利預測不確定或具臆測性為由拒絕。倘仲裁庭認為申請人的獲利預測不確定，可 在進行評價的過程中對相關假設參數作適當的調整，降低不確定及臆測性的質疑；
甚至可另聘請公正客觀的專家證人，進行現金流量折現法的估算。
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附件 1：重要投保條約徵收補償條款一覽
《World Bank Guidelines on the Treatment of Foreign Direct Investment》
IV
EXPROPRIATION AND UNILATERAL ALTERATIONS OR TERMINATION OF CONTRACTS
1. A State may not expropriate or otherwise take in whole or in part a foreign private investment in itsterritory, or take measures which have similar effects, except where this is done in accordance with applicablelegal procedures, in pursuance in good faith of a public purpose, without discrimination on thebasis of nationality and against the payment of appropriate compensation.
2. Compensation for a specific investment taken by the State will, according to the details provided below, be deemed "appropriate" if it is adequate, effective and prompt.
3. Compensation will be deemed "adequate" if it is based on the fair market value of the taken asset as such value is determined immediately before the time at which the taking occurred or the decision to take the asset became publicly known.
4. Determination of the “fair market value" will be acceptable if conducted according to a method agreed by the State and the foreign investor (hereinafter referred to as the parties) or by a tribunal or another body designated by the parties.
5. In the absence of a determination on agreed by, or based on the agreement of, the parties, the fair market value will be acceptable if determined by the State according to reasonable criteria related to the market value of the investment, i.e., in an amount that a willing buyer would normally pay to a willing seller after taking into account the nature of the investment, the circumstances in which it would operate in the future and its specific characteristics, including the period in which it has been in existence, the proportion of tangible assets in the total investment and other relevant factors pertinent to the specific circumstances of each case.
6. Without implying the exclusive validity of a single standard for the fairness by which compensation is to be determined and as an illustration of the reasonable determination by a State of the market value of the investment under Section 5 above, such determination will be deemed reasonable if conducted as follows:
(i) for a going concern with a proven record of profitability, on the basis of the discounted cash flow value;
(ii) for an enterprise which, not being a proven going concern, demonstrates lack of profitability, on the basis of the liquidation value;
(iii) for other assets, on the basis of (a) the replacement value or (b) the book value in case
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such value has been recently assessed or has been determined as of the date of the taking and can therefore be deemed to represent a reasonable replacement value.
For the purpose of this provision:
-a “going concern” means an enterprise consisting of income-producing assets which has been in operation for a sufficient period of time to generate the data required for the calculation of future income and which could have been expected with reasonable certainty, if the taking had not occurred, to continue producing legitimate income over the course of its economic life in the general circumstances following the taking by the State;
-“discounted cash flow value” means the cash receipts realistically expected from the enterprise in each future year of its economic life as reasonably projected minus that year's expected cash expenditure, after discounting this net cash flow for each year by a factor which reflects the time value of money, expected inflation, and the risk associated with such cash flow under realistic circumstances. Such discount rate may be measured by examining the rate of return available in the same market on alternative investments of comparable risk on the basis of their present value;
-“liquidation value” means the amounts at which individual assets comprising the enterprise or the entire assets of the enterprise could be sold under conditions of liquidation to a willing buyer less any liabilities
which the enterprise has to meet;
-"replacement value" means the cash amount required to replace the individual assets of the enterprise in their actual state as of the date of the taking; and
-"book value" means the difference between the enterprise's assets and liabilities as recorded on its financial statements or the amount at which the taken tangible assets appear on the balance sheet of the enterprise, representing their cost after deducting accumulated depreciation in accordance with generally accepted accounting principles.
7. Compensation will be deemed "effective" if it is paid in the currency brought in by the investor where it remains convertible, in another currency designated as freely usable by the International Monetary Fund or in any other currency accepted by the investor.
8. Compensation will be deemed to be "prompt" in normal circumstances if paid without delay. In cases where the State faces exceptional circumstances, as reflected in an arrangement for the use of the resources of the International Monetary Fund or under similar objective circumstances of established foreign exchange stringencies, compensation in the currency designated under Section 7 above may be paid in installments within a period which will be as short as possible and which will not in any case exceed five years from the time of the taking, provided that reasonable, market-related interest applies to the deferred payments in the same currency.
9. Compensation according to the above criteria will not be due, or will be reduced in case the investment is taken by the State as a sanction against an investor who has violated the
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State's law and regulations which have been in force prior to the taking, as such violation is determined by a court of law. Further disputes regarding claims for compensation in such a case will be settled in accordance with the provisions of Guideline V.
10. In case of comprehensive non-discriminatory nationalizations effected in the process of large scale social reforms under exceptional circumstances of revolution, war and similar exigencies, the compensation may be determined through negotiations between the host State and the investors' home State and failing this, through international arbitration.
11. The provisions of Section I of this Guideline will apply with respect to the conditions under which a State may unilaterally terminate, amend or otherwise disclaim liability under a contract with a foreign private investor for other than commercial reasons, i.e., where the State acts as a sovereign and not as a contracting party. Compensation due to the investor in such cases will be determined in the light of the provisions of Sections 2 to 9 of this Guideline. Liability for repudiation of contract for commercial reasons, i.e. , where the State acts as a contracting party, will be determined under the applicable law of the contract.
《Energy Charter Treaty》
ARTICLE 13 EXPROPRIATION
(1) Investments of Investors of a Contracting Party in the Area of any other Contracting Party shall not be nationalized, expropriated or subjected to a measure or measures having effect equivalent to nationalization or expropriation (hereinafter referred to as “Expropriation”) except where such Expropriation is:
(a) for a purpose which is in the public interest;
(b) not discriminatory;
(c) carried out under due process of law; and
(d) accompanied by the payment of prompt, adequate and effective compensation.
Such compensation shall amount to the fair market value of the Investment expropriated at the time immediately before the Expropriation or impending Expropriation became known in such a way as to affect the value of the Investment (hereinafter referred to as the “Valuation Date”). Such fair market value shall at the request of the Investor be expressed in a Freely Convertible Currency on the basis of the market rate of exchange existing for that currency on the Valuation Date. Compensation shall also include interest at a commercial rate established on a market basis from the date of Expropriation until the date of payment.
(2) The Investor affected shall have a right to prompt review, under the law of the Contracting Party making the Expropriation, by a judicial or other competent and independent authority of that Contracting Party, of its case, of the valuation of its Investment, and of the payment of compensation, in accordance with the principles set out in paragraph (1).
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(3) For the avoidance of doubt, Expropriation shall include situations where a Contracting Party expropriates the assets of a company or enterprise in its Area in which an Investor of any other Contracting Party has an Investment, including through the ownership of shares.
《North American Free Trade Agreement》
Article 1110: Expropriation and Compensation
1. No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment ("expropriation"), except:
(a) for a public purpose;
(b) on a non-discriminatory basis;
(c) in accordance with due process of law and Article 1105(1); and
(d) on payment of compensation in accordance with paragraphs 2 through 6.
2. Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place ("date of expropriation"), and shall not reflect any change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value.
3. Compensation shall be paid without delay and be fully realizable.
4. If payment is made in a G7 currency, compensation shall include interest at a commercially reasonable rate for that currency from the date of expropriation until the date of actual payment.
5. If a Party elects to pay in a currency other than a G7 currency, the amount paid on the date of payment, if converted into a G7 currency at the market rate of exchange prevailing on that date, shall be no less than if the amount of compensation owed on the date of expropriation had been converted into that G7 currency at the market rate of exchange prevailing on that date, and interest had accrued at a commercially reasonable rate for that G7 currency from the date of expropriation until the date of payment.
6. On payment, compensation shall be freely transferable as provided in Article 1109.
7. This Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights, or to the revocation, limitation or creation of intellectual property rights, to the extent that such issuance, revocation, limitation or creation is consistent with Chapter Seventeen (Intellectual Property).
8. For purposes of this Article and for greater certainty, a non-discriminatory measure of general application shall not be considered a measure tantamount to an expropriation of a debt security or loan covered by this Chapter solely on the ground that the measure imposes costs
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《2012 U.S. Model Bilateral Investment Treaty》
Article 6: Expropriation and Compensation
1. Neither Party may expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (“expropriation”), except:
(a) for a public purpose;
(b) in a non-discriminatory manner;
(c) on payment of prompt, adequate, and effective compensation; and
(d) in accordance with due process of law and Article 5 [Minimum Standard of Treatment](1) through (3).
2. The compensation referred to in paragraph 1(c) shall:
(a) be paid without delay;
(b) be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (“the date of expropriation”);
(c) not reflect any change in value occurring because the intended expropriation had become known earlier; and
(d) be fully realizable and freely transferable.
3. If the fair market value is denominated in a freely usable currency, the compensation referred to in paragraph 1(c) shall be no less than the fair market value on the date of expropriation, plus interest at a commercially reasonable rate for that currency, accrued from the date of expropriation until the date of payment.
4. If the fair market value is denominated in a currency that is not freely usable, the compensation referred to in paragraph 1(c) – converted into the currency of payment at the market rate of exchange prevailing on the date of payment – shall be no less than:
(a) the fair market value on the date of expropriation, converted into a freely usable currency at the market rate of exchange prevailing on that date, plus
(b) interest, at a commercially reasonable rate for that freely usable currency, accrued from the date of expropriation until the date of payment.
5. This Article does not apply to the issuance of compulsory licenses granted in relation to intellectual property rights in accordance with the TRIPS Agreement, or to the revocation, limitation, or creation of intellectual property rights, to the extent that such issuance, revocation, limitation, or creation is consistent with the TRIPS Agreement.
(Method of Valuation) Amco v. Iran 1984-
1990 飯店執照 正當法律程序、拒絕正
義(denial of justice) Chorzow Factory 完整補償
(Full compensation) DCF 法
Products Ltd v Republic of Sri Lanka
Trading v. Zaire
1997 消費性產 品
保護與安全、因戰爭、
暴動及暴力所致損失 Chorzow Factory 實際市場價值 未論述
Wena Hotels v Egypt 2000 觀光旅館 徵收、公平公正待遇 Egypt – United
Kingdom BIT (1975) 公平市場價值 actual investment SwemBalt Limited v
The Republic of Latvia 2000 運輸業 違反 BIT
The Republic of Latvia 2000 運輸業 違反 BIT