Research On Legal Issues Of Indirect Expropriation

With the deepening of world economic exchanges, countries are activelyinvolved in the tide of economic globalization.Under this background, internationalinvestment boom from country to country. But, at the same time, internationalinvestment disputes are also growing up. Due to the special legal nature of indirectexpropriation which has the close relation with the government’s managementmeasures, interfering the management of the government policy behavior seriously, sothe national management is facing a serious threat and challenge. For this reason,indirect expropriation which is a more concealed expropriate measure attractspeople’s extensive attention.However, the theory and practice of indirect expropriation is not perfectatpresent. There is having no unified constitution and standards to determine theindirect expropriation problem, ultimately lead to the indeterminacy of thisproblem.From the international arbitration institution accepts a lot of cases aboutindirect expropriation, we can see that the trend to protect the interests of investors inthe developed countries, so interests of the investors and the host country have seriousimbalances.Although in recent years, China’s overseas investments have made greatachievements, still not get rid of the shadow of the developing countries, therefore,the study of indirect expropriation related legal issuesto which perfect our relevantlegislation, the reasonable management of our country and the legitimate rights offoreign investors have important significance.Thispaper is appliedthe method of historical analysis, case analysis, comparative analysis and empirical analysis and based on related theory of indirect expropriation,collecting a large number of international arbitration case to comparative analysis.Then, I put forward some suggestions on how to determine the constitution ofindirectexpropriation, and some related legal countermeasuresonour country how to deal withthe downside of indirect expropriation.In this paper, besides introduction and conclusion, there are four parts.The first part mainly discusses the general theory of indirect expropriation,including the origin of indirect expropriation and constitutive requirements,essence.Due to there does not have a unified, clearconcept ofindirect expropriationatpresent, therefore, this paper from the domestic scholars and foreign scholars onindirect expropriation problem and the related provisions of international treaties onindirect problem from several aspects of indirect tax further analysis, gives adefinition of indirect expropriation.Putting forward the issue of indirect tax is thesocial economy to exercise its management right in the national legal things withcountries such as a gray area between indirect tax act, we are difficult to determine byexternal forms of government management behavior in this area.The second part of his paper through three cognizance standards distinguishesindirect expropriation and management behavior of the government.The threecognizance standards are pure effect respectively, objective standards, as well as theeffect and purpose of standards, at the same time, introducing the proportion principlein administrative law.Through comparative analysis, the effect and purpose of thestandard that is the effect and purpose and proportion principle which should beconsidered at the same time, the method for determining standards of indirectexpropriation is more reasonable. On these three criteria, I cited the cases of thearbitration tribunal, it can be seen many aspects when the arbitration tribunal in theindirect expropriation introduced, such as the degree of intervention, the assets of theinvestors, the reasonable expectation of investors and the government’s commitment.The third part mainly studies the compensation on indirect expropriation,elaborating the indirect expropriation to the traditional view of compensation, and thenew development.Traditional view mainly has the following kinds:"Herr principle" (all the compensation principles);"Appropriate compensation" standards;"Nocompensation standard, the traditional compensation standard gradually revealed itsshortcomings in time, therefore, some scholars put forward" or all, or part, or nothing"the new compensation standard, for the indirect tax to compensate provides new trainof thought.The fourth part related to our country international investment treaties anddomestic legislation on foreign investment as a starting point to deal with indirectexpropriation problems and put forward the corresponding legal advice for ourcountry.