| Mining Industry is also known as the Extractive Industry among the basic industries of national economy which focuses on the exploration and development of energy resources,metal resources and non-metallic resources and provides indispensable mineral raw materials for the development of various industries.At present,China's mineral resources support capacity is seriously inadequate.For example,the external dependence of oil,copper and aluminum have reached 60%,70% and 50% respectively and even some shortages resources such as tantalum and niobium,platinum group metals higher,which have a negative effect on the mineral resources supply and national security of China.Among foreign investment,the proportion of mining industry remains high which accounted for 23% and 18% of the total China's foreign investment in 2013 and 2014.According to the statistics,among the 247 global investment disputes registered in ICSID by the end of 2015,cases about oil,gas and mining accounted for 25%,ranking first in the industry.In the current complex international investment dispute situation,we should study in-depth the relevant legal issues of the promotion and protection of foreign mining investment.The problem of indirect expropriation is not only hot issue but difficult in the field of international investment.Cases about indirect expropriation are emerging in recent years which implies the interests conflicts and imbalance between the host country and the investors in the mining investment industry become more and more obvious,which caused more legal problems through strengthening the characteristics of indirect expropriation “ambiguity,arbitrariness and uncertainty” and directly affected the development of China's foreign mining investment and China's supply of resources and national security.In the process of exploring the problem of indirect expropriation,this paper explores and studies the balance between the host country and the investor,which leads to a large number of indirect expropriation problems.It is concluded that indirect expropriation is the reflection of the imbalance between host countries and investors in international investment disputes.From the perspective of indirect expropriation,this paper probes into the reasons of the unbalanced interests of the host country and investor behind the problems caused by indirect expropriation and studies the specific factors of indirect investment in foreign mining investment from the point of host country,mining investor,international investment dispute settlement,and international investment arbitration compensation,through the combination of theoretical analysis and empirical research and puts forward some suggestions and advice on the measures to protect foreign investment.This paper is written into seven chapters:The first chapter introduces the research background and practical needs and theoretical significance of this paper;the literature review of relevant issues,including foreign mining investment risk and expropriation,the international mining investment theory and the countries of the mining investment protection practices;the summary of the research background and related problems of China's foreign mining investment demand;the research objective,the train of thought and the specific research method of this paper;the main contents,the key and difficult points,innovation and shortcomings of this paper.The second chapter elaborates the indirect expropriation in international investment.The main contents of this chapter are as follows: the concept of indirect expropriation in international investors,the concepts of expropriation,security rights,public interests and their relationships with indirect expropriation.The basic types of indirect expropriation including “tantament to expropriation”,“regulatory expropriation” and “creeping expropriation”;the criteria and standards of indirect expropriation in international investment,including the purpose, effect and adoption of those criteria and standards.In addition,this chapter also focuses on the study of the tax measures taken by the host country on mining investment which was always seen as indirect expropriation.The third chapter studies the compensation for the indirect expropriation in the foreign mining investment.Firstly,this chapter discusses the Hull formula,appropriate compensation principle and non-compensation principle which are widely accepted in the international investment filed.Secondly,this chapter analyzes the performance and trends of the indirect compensation standard,especially the evolution of compensation standards in international investment agreements in China.Thirdly,this chapter also studies the compensation principles and methods in international investment disputes,including the market value evaluation basis,evaluation method,compensation calculation date,the similarities and differences of the illegal expropriation and legal compensation,as well as the amount of compensation for the determination of the legal considerations.The fourth chapter analyzes the magnification of the indirect expropriation concluding from the awards of ISDC cases about mining.This chapter discusses the problems in current investment disputes from three perspectives: One is the analysis of ISDS background and existing problems;two is the analysis of the design ideas and trends of international investment disputes taking the United States as an example from the perspective of major investment countries;three is the analysis of the protection of mining-related public interest and the choice of ISDS route,as well as the revival of Calvoism and the elusion measures of some major mineral resource-exporting countries to solve the current international investment dispute settlement from the perspective of the host country.The fifth chapter states the special provisions of the foreign mining investment-Stability Clause.In the process of mining investment,the host country and investors usually sign the investment agreement.In order to deal with the problem of long investment period and large-scale investment,investors usually want to add the stability clause to reduce the investment risk.This chapter studies the validity of the stability clause,the basic application and the stability clause,and points out that the stability clause is an important guarantee for the mining investor.At the same time,this chapter also analyzes the common types of stability clauses,including invisible clauses,frozen clauses and economic balance clauses and their characteristics,and probes into the exception clause added by the host country for the protection of national public interests.The sixth chapter probes into the social responsibility in the foreign mining investment.On the basis of hierarchy of responsibility theory and interest-related theory,this chapter researches the trend of the legalization of the social responsibility on the mining enterprisies.Combined with the characteristics of mining investment,this chapter analyzes the basic content of the social responsibility of mining enterprises including the relevant international standards and proposals,the special content and specific connotation and summarizes the core problems of the social responsibility of Chinese international mining investment.The seventh chapter is also the conclusion of this paper which summarizes the protection and choices of China's foreign mining investment.After analyzing the Bilateral Investment Agreement,the Multilateral Agreement on Investment and the International Investment Rules,the balance strategy between investor and host country which China raised and China's foreign mining investment facilitation system,the author puts forward some suggestions on legal protection of foreign mining investment in China. |
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