A Study On The Legal Problems Of Indirect Collection In International Investment

Indirect expropriation is an hot and difficult problem in international investment areas.Development of economic globalization and liberalization of investment makes indirectexpropriation cases continue to emerge. Different positions of capital exporting countries andcapital importing countries deep-seated reasons what led to the non-uniformity of indirectexpropriation rules,Indirect expropriation development showing a magnified trend that makesthe characteristics of ambiguity, uncertainty indirect expropriation rules led to more legalissues, the over protection of foreign investors and neglect to the host country power andinterests,Imbalance of interests is outstanding legal issues so that these capital-exportingcountries and capital-importing countries have faced difficulties. Indirect expropriation rulesis one of the elements of international direct investment, the development of indirectexpropriation have a direct impaction on the investment environment and the flow ofinternational capital, Thereby affecting the world economy.Indirect expropriation in international investment is the inevitable result of the hostcountry’s sovereignty and foreign investors contradictory development. Currently the focus ofthe dispution is the definition of indirect expropriation imposed boundaries indirectexpropriation and foreign control measures,indirect expropriation compensation and otherissues.The international investment agreements,including bilateral investmenttreaties,multilateral investment agreements and regional investment agreements,which aregenerally provided indirect expropriation rules,but the status of three investment agreementsare different. For such a capital input of capital-exporting countries in terms of the countryand the dual role of a big country, the rules on indirect expropriation faced with a dilemma, itis necessary to pay attention to protect the interests of foreign investors in order to create abetter investment environment to attract foreign investment and promote native economicdevelopment;while also implementing the strategy of going out of the country, strengthen theprotection of rights and interests of overseas investors. Magnifying face legal problemscaused by indirect expropriation.China should actively respond to adhere to the country’seconomic sovereignty,the principles of fairness and justice under the premise of the balance of the host country’s sovereignty rights and interests of overseas investors.Article is dividedinto seven sections:First the basic issues of indirect expropriation.The concept of indirect expropriation isnot uniform,treaty practice and judicial practice has a variety of differentinterpretations.Western countries from the standpoint of capital-exporting countries,theconcept of indirect expropriation be broadly interpreted, to reduce indirect expropriationdetermined threshold, the maximum limit national sovereignty of the host country.International Court of Arbitration is often made in favor of the protection of foreign investors’interpretation of indirect expropriation cases. Emerged in the1970s and eighties indirectexpropriation cases directly led to academic hot on this issue.Boundaries of indirectexpropriation and government measures between the key and difficult indirect expropriationsystem, both to the definitions of the various factors into consideration, the use of a method todistinguish between the principle of proportionality.Second the legal basis of indirect expropriation.National economic sovereignty and theprotection of private property is the legal basis of the theory of indirect expropriation. Thelatest developments in direct violation of indirect expropriation of permanent sovereigntyover natural resources and foreign jurisdiction of the host country.North and South countriesare still huge contradiction, focusing on the country’s economic sovereignty of the hostcountry as the theoretical basis of indirect expropriation requires further protect thesovereignty of the host country and minimize the scope of indirectexpropriation.Capital-exporting countries are more focused emphasis on the protection ofprivate property rights as the legal basis of the theory so strongly expand the scope of indirectexpropriation, reducing the threshold and thus indirectly impose high standards identified toprotect their overseas investments. Developing countries as the host country,should be tosafeguard the country’s economic sovereignty as the legal basis of indirect expropriation.Third the legal practice of indirect expropriation.Indirect expropriation case ofinternational investment in large numbers,a different point of view of international arbitrationtribunal to define indirect expropriation inconsistent methods are not uniform,for a variety ofreference are different factors to consider focusing,making indirect expropriation casesunpredictable results.However, the International Court of Arbitration has gradually adoptedthe principle of proportionality European Court of Human Rights to determine indirect expropriation has occurred. Indirect expropriation rules of treaty law and standards varyamong the different national positions.Fourth expansion of indirect expropriation and legal issues raised.Indirect expropriationhas magnified trends,its manifestations defined investment expansion, range expansion,suchas indirect expropriation.The reason for this trend include the expansion of the arbitraltribunal propensity of investors,lack of rule of indirect expropriation and the voice ofdeveloping countries, the dominant capital exporter.This expansion led to an imbalance of thehost country ’s interests and the interests of investors.as well as legal issues undermine theprotection of investors and other host countries over economic sovereignty.Fifth in the interests of indirect expropriation imbalance analysis.From the investor andthe host country,investors and home country,the host country and home country triple equityimbalance reflects the overall perspective of indirect expropriation of equity imbalances.Three different objectives,different positions, means and methods are not the same positionin the international investment activities are also unequal.Indirect expropriation legislationand judicial practice have a problem with one-sided protection of investors’ interests whileignoring or even undermine the sovereignty of the host country’s economy, making theimbalance of the host country and the public interest of foreign investors in private interests,affecting international capital flows and impede economic development of globalization, butalso to the country’s economic sovereignty to face threats and challenges.Sixth the analysis of indirect expropriation rules of non-uniformity.Bilateralinvestment treaties signed by countries,free trade agreements and regional investmentagreements,multilateral investment agreements provisions indirect expropriation compare;indirect expropriation and non-uniformity of rules to analyze the deep-seated reasons can befound,as countries stand different target inconsistencies and other reasons,there has been anindirect non-uniformity imposed rules.With the deepening of globalization ofeconomic,international investment law as well as indirect expropriation arise variousproblems in practice,countries gradually began to impose rules on indirect adjustment,thesenew changes have been gradually.Seventh legislative and Legal Measures indirect expropriation system in China. Chinais a big country with a capital-exporting countries importing country dual identity,to developindirect expropriation rules have practical needs.Extension Trend indirect expropriationmakes our country is facing a dilemma.For indirect expropriation expansion, equity indirect expropriation rules lead to imbalances,non-uniformity of these indirect expropriation ofseveral key issues,from our position and angle,at the insistence of large developing countriesstand under the premise of these indirect expropriation issues targeted analysis,our copingstrategies.Uniform provisions of domestic law and international treaties indirectexpropriation,adhere to the principle of national economic sovereignty,the principles offairness and mutual benefit,limiting expansion of indirect expropriation,balancing theinterests of foreign investors in the host country and reflect the interests of China’s dualidentity demands a big country,and actively participate in the formulation internationalinvestment agreements and trade agreements and fight for the right to speak.