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Indirect Expropriation In International Investment Agreements

Posted on:2007-09-06Degree:MasterType:Thesis
Country:ChinaCandidate:D Y ChenFull Text:PDF
GTID:2166360212977441Subject:International Law
Abstract/Summary:PDF Full Text Request
The issue of expropriation is one of the most contentious issues in the field of protection of the international investment. After NAFTA became effective, many disputes involving expropriation issue have been submitted for international arbitration according to NAFTA Chapter 11, and some new problems have arisen,including how to distinguish between the indirect expropriation and the regulatory power. The NAFTA practice has cause the development of new provisions of expropriation in the International Investment Agreements (IIAs). This thesis will do some research on the case law of international expropriation and the new development, and bring forward some suggestions to improving the expropriation provisions in China's Bilateral Investment Treaties (BITs).This thesis consists of five chapters in addition to Preface and Conclusion.Chapter One reviews the genesis of problem of indirect expropriation. In the past, the conflicts existed mainly between the developed countries and the developing countries, after NAFTA ten years'practice, the main conflict has converted to the contradiction of interests between the state and the investor.Chapter Two introduces the theory, provisions and application of the principle of regulatory power exception, point out that the prerequisite of identification of an indirect expropriation is to identify whether the measure falls into the scope of regulatory power.Chapter Three sums up the main tests and accessory principles and other factors applied in the expropriation cases. The main tests are"Sole Effect Test"and"Purpose Test". In order to balance the interests between the state and the investor, accessory principles like"Principle of Proportionality"and interference with distinct, reasonable investment-backed expectations and other factors are to be considered in the determination of whether a measure constitutes an indirect expropriation.Chapter Four analyses the recent development of expropriation provisions in the IIAs. U.S.A. and Canada have made some significant changes to the expropriation provisions in their new Model BIT and FIPA respectively after learning some lessons from the NAFTA practice. This chapter first introduces the background, analyses the...
Keywords/Search Tags:Indirect Expropriation, Investment Agreement, Regulatory Power
PDF Full Text Request
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