Legal Research And Analysis On Indirect Expropriation In International Investment

Indirect expropriation is the act of the host country depriving investors of property interests,which reflects the eternal conflict of interest between the host country and the investor.As capital exporting and capital importing country,our country has encountered indirect collection risk in the overseas investment process.At present,the collection clause in bilateral investment treaty cannot meet the needs of international investment.It is worth discussing how to perfect the collection clause,how to combine the dispute settlement procedure with overseas investment insurance and how to avoid the loss of economic interests caused by indirect collection.The first part of this thesis mainly summarizes the basic theory of indirect expropriation,clarifies the concept of indirect expropriation by combing relevant international documents and international investment agreements,distinguishes it from direct expropriation,and discusses the recognition of the legality of indirect expropriation from four aspects: conformity with public purpose,non-discrimination principle,due process and compensation standard.Finally,it analyzes the historical progress and present situation of indirect expropriation and points out that it is of great significance to study the legal issues of indirect expropriation.The second part mainly analyzes the criteria for determining indirect expropriation.The identification standards of indirect expropriation have not been unified yet.This thesis combines arbitration practice and related theories to analyze the identification methods and deficiencies of the three standards of single effect standard,single purpose standard and both effect and purpose standard one by one,and analyzes the influence of the introduction of the principle of proportionality on the above three identification standards.At the same time,on this basis,analysis of tax measures constitute indirect collection problems.The third part mainly analyzes the compensation of indirect expropriation,including compensation standard and compensation calculation method.In the compensation standard,the existing Hull rule and appropriate compensation standard are analyzed.Although the two seem to be opposite,in practice,the arbitral tribunal often considers them together.In the compensation calculation method,the fair market value method and the actual profit loss method are discussed,and the most reasonable compensation calculation method in practice is discussed.The fourth section focuses on dispute resolution of indirect expropriation.In cases involving indirect expropriation in international investment,different methods of dispute settlement bring different results.This article combined with related cases involving our country,analyzes the indirect expropriation behavior to our country to bring about the obstacles to overseas investment,and analyzes the indirect expropriation dispute relief problems in our country.The fifth part is the suggestion part,mainly for the above three aspects of the problem put forward to improve the suggestions.Aiming at the deficiency of relevant clauses of indirect expropriation in our country’s current international investment treaties,this thesis put forward some suggestions such as adding sustainable development clause,setting up indirect expropriation judgment clause,exception clause and unified compensation clause.Regarding dispute settlement,China has proposed prudent application of the dispute settlement mechanism and improvement of the overseas investment insurance system.