| With the development of the international economy,the investment disputes among various countries are also gradually increasing Because in the international investment arbitration,it is mainly to solve the disputes sued against the host country by the investors as private subjects,Therefore,the rules of the arbitral tribunal often involve the substantive judgment of the government’s expropriation in the bilateral investment treaty and domestic economic policy.Based on the international tendency to protect investors,the domestic economic security and policies of the host country are often recognized as an indirect expropriation.The reason is that there is a lack of a stable measurement mechanism that can reasonably balance the public interests of a country and the private interests of foreign investors in the current discretion process of the arbitration tribunal related to investment.In order to regulate this intersection of public and private law and promote the rationalization of international arbitration process and state expropriation,the principle of proportionality originated from administrative law and expanded to be applied to international investment is valued by people and is gradually applied to the determination of indirect expropriation affecting public interests.From the perspective of public law,this paper systematically discusses the application of the proportion principle to the indirect expropriation affecting the public interest of a country.Meanwhile,based on the study of China’s bilateral investment treaties,cases of classical application of the proportionality principle,and indirect expropriation case involving China,this paper explores the determination and application of the proportionality principle in specific judgments about indirect expropriation.This paper will first sort out the development and content of the proportion principle in public law,and then introduce the expansion of the proportion principle generally applicable in public law to the development in the field of international law.Then the development of domestic and foreign expropriation are analyzed.On this basis,select the proportion principle is applicable to the typical cases of indirect expropriation for analysis,and summarize the standards for the determination of the proportionality principle applicable to indirect expropriation,and explore the feasibility trend and deficiencies in the application of the current proportion principle.Finally,from the standpoint of protecting the interests of my country’s investors and my country’s public interests,I suggest improve the content of indirect expropriation clauses,strengthen the system of indirect expropriation rules,improve international indirect expropriation rules,and promote the order of our country%s domestic and foreign-related rule of law,and put forward suggestions at different levels,combined with China’s dual identities as an investor’s home country and an investment host country,to participate in the construction of international rules and safeguard China’s interests in the international investment field. |
