| The issue of indirect expropriation has been the public focus since1970s in both the theoretical and practical circle. However, the disputes of indirect expropriation takes a higher percentage of the international investments disputes. because of being lack of theories and practices of indirect expropriation, such as each country or arbitral tribunal holds an different opinion on the definition and judgments of the indirect expropriation. In this thesis, the author discusses the main legal questions about indirect expropriation.The whole thesis is composed of4chapters except for introduction and conclusion.The first chapter of my thesis mainly introduces the definition of indirect expropriation and its constituent elements. Indirect expropriation originated from expropriation, in the first section, it illustrates the definition of the expropriation and nationalization which is similar with expropriation and it also compares the relations between them. In the second section, it discusses the origin of the indirect expropriation and the definition of indirect expropriation, and the relationship between expropriation and indirect expropriation, discussing its concept in detail from educational circles, international treaty, international investment agreement; in the third section, it analyzes the constituent elements of the indirect expropriation, including the purpose of protecting the public interests subjectively, according with its applicable domestic laws and its legal procedures, following with non-discriminatory, comedies, and the actions that made some loss for the investors. On the whole, in the fist chapter, I analyze the expropriation in general.The second chapter of my thesis mainly analyzes the identification standard of indirect expropriation. Presently, we can classify it into three both theoretically and practically, they are sole effect doctrine, purpose doctrine, effect and purpose doctrine. In this chapter, I analyze these three doctrines with a lot of special cases to evaluate objectively whether they are applicable. After comparison, the author considers that effect and purpose doctrine is the best method. Except for these three doctrines, it discusses other two assistant standards,’proportionality principle’ and ’three factors principle’, and makes an analysis of the indirect expropriation by these doctrines we have discussed.The third chapter of my thesis introduces five dispute settlement mechanism(DSM), the Iran-United Claims Tribunal, ICSID, NAFTA, MIGA, European Court of Human Rights. After a brief introduction of these five mechanisms, with a profound analysis on dispute settlement mechanism of indirect expropriation, as well as a comparison among them, finally, I draw a conclusion on my own. Meanwhile, the author regards that ICSID is the suitable mechanism to coordinate the disputes of indirect expropriation, and then analyzes it in detail.The forth chapter mainly introduces the law of indirect expropriation in China. In the first section, basing on the current situation of investment of China. According to the relevant statistics and cases, the author points out that we are encountering with two risks, the first one is that the host country is the investor who is at the risk of being accused with indirect expropriation, another one is that the oversea investment of China is risking to be imposed indirect expropriation by the host country. The second section talks about the legislation of indirect expropriation in China, however, there is little legislation about them, to some extent, and they mainly consist of bilateral investment treaty and other treaties. And focusing on the regulation of indirect expropriation of BIT of China and India. In the third section, the author points out that how to deal with the problems of indirect expropriation in China, including making a better and detailed definition of public interests in domestic law and indirect expropriation in the Investment Agreement, and treating with jurisdiction of ICSID in caution. |
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