Studies On Some Legal Issues Of Indirect Expropriation In International Investment

With the development of economic globalization, international investment has become increasingly frequent, followed by an increasing number of indirect expropriation problems, the problem of indirect expropriation is of great theoretical value and practical significance. This thesis starts from the legitimacy theory of indirect expropriation, then transverse studies of the definition of indirect expropriation in international investment agreements and international investment arbitration practice, and longitudinal studies of the definition of indirect expropriation and compensation standards. Moreover, this thesis makes study of the risks of indirect expropriation in China's bilateral investment agreements (hereinafter referred to as BIT), and makes preventive recommendations.This thesis consists of four parts in addition to Preface and Conclusion.The first part is the theoretical issues of indirect expropriation. The author first discusses the legitimacy theory of indirect expropriation, including the traditional theory in the Western countries------the theory of limiting the power and the new theory from the 20th Century------economic sovereignty theory, and the differences between developed and developing countries, and then discusses the indirect expropriation compensation disputes, including three types of compensation theory (the theory of full compensation, the theory of no compensation and the theory of part compensation) and the identified standards of indirect expropriation, including the pure effect standard, purpose standard, both effect and purpose standards and ratio standard.The second part is the definition of indirect expropriation in international investment agreements. Through the study of international investment agreements, the intention and impact concluded in the agreements can be found. The author introduces the provisions of the North American Free Trade Area (hereinafter referred to as NAFTA), the United States model BIT in 2004 and Canada model BIT in 2004 from two aspects that is the definition of indirect expropriation and the compensation standard, then analyzes and compares them one by one so that where worth studying can be found.The third part is the definition of indirect expropriation in the international investment arbitration practice. Through the study of the practice of international investment arbitration, the standards of the identification of indirect expropriation and compensation standards by the various arbitral tribunals can be concluded. Through some typical cases, This thesis discusses the definition of indirect expropriation by the Iran - United States Claims Tribunal, NAFTA tribunal and the ICSID tribunal, then it compares each tribunal and makes thinking from the two aspects that is the definition of indirect expropriation and the compensation standard .The fourth part is the problem of indirect expropriation in China's BIT. Through the study of previous parts, the author concludes the risks of indirect expropriation in China's BIT, such as lacking of clarity of indirect expropriation, lacking of transparency of compensation standard, and the magnification of dispute settlement mechanism. Accordingly, the author proposes some preventive measures of indirect expropriation in China's BIT, such as clearly defining the indirect expropriation, improving the standard of compensation of Indirect expropriation and actively building an effective dispute settlement mechanism.