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Determination And Recommendation Of Indirect Expropriation

Posted on:2014-03-10Degree:MasterType:Thesis
Country:ChinaCandidate:J R ZhengFull Text:PDF
GTID:2256330401478247Subject:International law
Abstract/Summary:PDF Full Text Request
Expropriation has been one of the most controversial topics in the field ofInternational Investment Law. The focus of controversy has constantly changed,ranging from expropriation’s legality to the compensation standard, in recent years, itwas replaced by the determination of indirect expropriation. Since indirectexpropriation does not have a uniform, identified definition, and the tendency offavoring foreign investors is spreading in the practice of international investmentarbitration, it is of importance to study the determination of indirect expropriation.Generally speaking, the “effect and purpose test” is becoming a major standard indetermining whether a regulatory taking constitutes an indirect expropriation.Through relevant laws and theories, this article is trying to find a better wayapproaching to the balance point between investors and host country and make somerecommendations.The first section is about some study of the fundamental knowledge of indirectexpropriation, including its implication, development history and essence. Theextension tendency of indirect expropriation has lowered the standard ofdetermination as well as challenged the police power of the host country.The second section mainly analyses the current situation of the determination standard of indirect expropriation. After comparing “sole effect test”,”purpose test” and the“effect and purpose test”, it is concluded that “effect and purpose test” best suits thedetermination standard.The third section discusses the feasibility of applying the principle of proportionalitywhen determining an indirect expropriation and shows some cases which has involvedproportionality analysis.The forth section is recommendations of China’s attitude towards indirectexpropriation’s determination standard based on the harsh national condition, which isChina has gained dual identities of being capital-importing country andcapital-exporting country at the same time.
Keywords/Search Tags:Indirect Expropriation, Principle of Proportionality, Determination of Indirect Expropriation
PDF Full Text Request
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