Definition Of Indirect Expropriation In The International Investment Treaties And The Countermeasures Of Our Country

Traditionally there are many theoretical and practical disputes about Indirect expropriation, which is one of the most important substantial issues in the international investment field. The focus of disputes change from the original legal issues to the subsequent compensation standard, and then to the appearance of indirect expropriation cases since 1980s, the concept of indirect expropriation is keep growing, the definition of indirect expropriation has gradually become the new focus of disputes, the definition of indirect expropriation is considered to be the most difficult problem in the field of international investment, which is not only related to the interests of the investment protection, but also to the interests of the national economic sovereignt.Indirect expropriation is different from the direct expropriation which directly deprives the ownership of property. Compared with the direct expropriation,the characteristics of the Indirect expropriation is more complex. Most of the rules of the Indirect expropriation exist in the international conventions, bilateral, multilateral and regional international investment treaties. It is not hard to see that the definition of Indirect expropriation standards continue to improve and the regulations of Indirect expropriation also continue to refine by analyzing the new signed international agreements, such as BITs, FTAs, which, to some extent, limits the expanding of discretion of the international arbitration tribunal.Scholars have put forward three kinds of standards for the cognizance of Indirect expropriation:"sole effect doctrine", "sole purpose doctrine" and "effect and purpose doctrine", in the arbitration practice ICSID arbitration tribunal gradually established the the "principle of proportionality". Although the "effect and purpose doctrine" overcomes the shortcomings of the "sole effect doctrine", and the "sole purpose doctrine", but due to the different interests behind the effect and purpose, it is remain controversial to weigh the effect and purpose in the specific arbitration practice, which makes the arbitration conclusions uncertainty. The emergence of the "principle of proportionality" to some extent alleviate the indecisive of the arbitration practice, which also brings new problems.In the international trend of investment liberalization and the increasing expansion of Indirect expropriation, China accept the jurisdiction of ICSID mechanism in an all-round way as the host country of investment and at the same time as the big foreign investment country, which makes our country facing double risk of charges due to the government regulation behavior by foreign investors for the indirect expropriation and be indirect expropriated by the host country. This article based on the related theory, the international legal documents and the study of international arbitration practice, when China participates in making the indirect expropriation rules,we should both consider the nature of indirect expropriation and its new development trend, From the perspective of interests balance of both host countries and foreign investors,combined with China’s national conditions and the international and domestic judicial practice to define indirect expropriation,we should not be completely accepted western dominant ICSID under the jurisdiction of the arbitration tribunal.