Research On Identification Of Indirect Expropriation In International Investment

Since the 1990 s,indirect expropriation has gradually been the concern of the international community,becoming one of the focus of international investment.However,so far,as the core issue of indirect expropriation,there is no unified and definite standard for the identification of indirect expropriation in theory and in practice.The provisions of the international investment agreements on indirect expropriation are not consistent,practice of international arbitration case definition is not unified.With the rapid development of international investment and the continuous improvement of China's economic level,China's increasing degree of international participation.The indeterminate of indirect expropriation not only increases the possibility that the Chinese government is accused of indirect expropriation when it implements the control measures,but also increases the risk of the indirect expropriation of the overseas investors in China.Therefore,in order to protect the legitimate exercise of government control rights,while taking into account China's overseas investment interests,it is necessary to identify the indirect expropriation system for detailed research.This paper attempts to propose a more reasonable definition of the balance between the interests of foreign investors and the public interests of the host country through the study of the related theoretical theories,state treaties and arbitration practice as defined by indirect expropriation.At the same time,aiming at the present situation and shortcomings of our country's indirect expropriation system,this paper puts forward the corresponding suggestions from the angle of investor's host country and investor's home country.Around the subject of the identification of indirect expropriation in international investment,this paper first analyzes the definition,form and purpose of indirect expropriation,and explores the connotation and denotation of indirect expropriation,starting from the theoretical summary of indirect expropriation,focusing on the subject of indirect expropriation in international investment.Indirectly imposed by the host country to the principle of national economic sovereignty and public interest principles based on the implementation of the control behavior,the main form of cancellation of permission or approval,excessive or arbitrary tax,mandatory interference in the management of corporate control and so on.The key to the problem of indirect expropriation is the balance between "effect" and "purpose" of government action.In other words,how to balance the public power of the host government and the private rights of foreign investors.Therefore,the balance between the two is particularly important.In this paper,the author studies the related standards of indirect expropriation from the perspectives of traditional theory,international treaties and arbitration cases.The sole effect doctrine,the purpose doctrine and the effect and purpose doctrine are analyzed in detail.The connotation and concrete application of the standard and proportion principle are analyzed,and the rationality and deficiency are summarized.Both the sole effect doctrine and the purpose doctrine are the game between different interest demands.Therefore,both standards have too many one-sided disadvantages,which are not conducive to the settlement of investment disputes.The effect and purpose doctrine are better than those of the host countries and the investors.While recognizing the right to control,it is also clear that the host government can intervene the interests of foreign investors for public purposes;the introduction of the proportion of the principle of balance between the host country and investors between the interests of the operable,it has been widely applicable.At last,this paper summarizes the status of China's indirect expropriation system,the definition of indirect expropriation is unclear,the method of public interest is lacking,the standard of indirect collection lacks operability,and the exception of public purpose is not perfect.China now has both capital exporting country and capital importing country,so it should be considered from the perspective of investment home country and investment host country,so that the interests of both sides of the balance and analyzes the relative problems of domestic law and bilateral investment agreement.At the end of this paper,the author puts forward the corresponding countermeasure for the perfection of the indirect expropriation system and the risk of China's indirect expropriation.