On The Protection Measures Of Cultural Heritage Of Host Countries And Indirect Expropriation

Cultural heritage is a spiritual symbol of a particular race or society that is difficult to recover once it has been destroyed.With the development of economic globalization,international investment has become increasingly prosperous.During this process,the cultural heritage resources of the host country have been continuously affected and destroyed.Protecting cultural heritage is the national sovereignty of a country,but when the host country's measures to protect cultural heritage affect the interests of foreign investors,foreign investors are likely to believe that the measure constitutes an indirect expropriation and seeks relief from international jurisdictions.Indirect expropriation means that the host government does not directly transfer the property ownership of the foreign investor,but takes measures to interfere with the property ownership of the foreign investor and has a substantial impact on the exercise of its rights.The property ownership of the foreign investor is not completely lost.This paper summarizes the conflicts between cultural heritage protection measures and indirect expropriation through the legal analysis of typical cases in international arbitration practice.The conflicts between the two are concentrated in:when the cultural heritage protection measures are recognized as indirect expropriation,how should the standard be determined?When the cultural heritage protection measures are recognized as indirect expropriation,the host country should compensate foreign investors,and how the compensation standard should be determined.In the international treaties and related investment agreements,there is no clear definition of the criteria and compensation standards for the indirect expropriation of cultural heritage protection measures.The international judiciary has no clear provisions on such issues,so When appealing to an international judiciary,the judiciary has no clear rules to follow,and the corresponding accreditation standards or compensation standards can only be determined through case analysis.The relationship between cultural heritage protection measures and indirect expropriation mainly implies the conflict between the right of the host country to protect cultural heritage and the economic interests of foreign investors,according to the practice of international arbitration,the author puts forward some suggestions for coordinating the relationship between the two to balance the cultural heritage protection rights of the host country and the interests of foreign investors:Cultural heritage protection objectives and cultural exception clauses should be included in the investment treaty.The indirect expropriation recognition criteria should be specified in the investment treaty.The"appropriate compensation"indirect expropriation compensation standards should also be specified in the investment treaty.The establishment of an international investment arbitration system appeal Mechanism is necessary.The host country and foreign investors should adopt multiple dispute resolution methods besides litigation and arbitration.As a big cultural heritage country,China has rich cultural heritage resources.Although there are no investment disputes arising from the protection of cultural heritage in China,international investment arbitration triggered by the adverse effects of China's cultural heritage protection measures on foreign investment may be triggered.So,we should take precautions in advance.According to the status quo of China's cultural heritage protection,the author provides some suggestions for the future cultural heritage protection work from the perspective of China as a host country.At the domestic level,China should improve cultural heritage protection through the establishment of legal system and an active participation in international treaties related to cultural heritage;at the international level,China should specify the cultural heritage protection objectives and cultural exception clauses in investment treaties,specify the criteria for indirect expropriation and compensation standards in investment treaties,and a fully study on variety of dispute resolution methods besides litigation and arbitration,and respond to disputes about cultural heritage protection that may occur later.