Research On The Principle Of Proportionality In Indentify Of Indirect Expropriation

With the increasingly indirect expropriation cases, it shows that relevant regulation intends to be expanded accordingly, whereas in international investment field, it has been always a problem to determine the existence of indirect expropriation. In fact, there is a general acceptance that the “Effect and Purpose Standards” has been determined as main standard for which a normalized standard is urgently required to make the Effect and Purpose Standards more operable so as to balance effect and purpose, and it is worth saying the principle of proportionality directs us and is open to adopt widely in practice in the future.There are 4 chapters in this article except for the Introduction and The Conclusion.Chapter 1 analyzes the origin and actuality of the indirect expropriation and indicates its trend of expansion. All the time, how to indentify indirect expropriation is a problem that the court and tribunal have to meet with; at present, the doctrine of” Effect and Purpose Standards” has been approved by most of courts and tribunals, but it still urgently needs for the practical solution to allocate percentages between effect and purpose.Chapter 2 introduces the semanteme of principle of proportionality and expounds how domestic law and international law adjust with principle of proportionality, which concludes that principle of proportionality evolves to be developed in domestic laws and is gradually penetrating to the branches of international law; meanwhile at present, principle of proportionality is generally and basically accepted in various horizontal fields of international law, namely the principle of proportionality is accepted to be deemed as general principle to the international law. the operation of regulation against indirect expropriation and principle of proportionality in international treaty in relevant indirect expropriation articles and concludes that the principle of appropriation is already put into use in BITs and FTAs as in rule level. Then analysis the impact of the principle of proportionality on indirect expropriation and the feasibility of determining principle of proportionality from indirect expropriation.Chapter 3 introduces the practice of principle of proportionality in the conflict in indirect expropriation, as the result, it is recognized that principle of proportionality is involved in indirect expropriation cases in ECt HR, NAFTA and ICSID, in case Tecmed v. Mexico among, which typically shows how principle of proportionality applies in indirect expropriation identification in detail for the first time. In addition, attempts to analyze the limitation of principle of proportionality to make study on the response to the limitation of principle of proportionality.Chapter 4 makes analysis on the indirect expropriation risk that China is facing with and the risk against indirect expropriation articles in the investment agreement and concludes that China’s indirect expropriation article is incomplete and lack of sufficient recognition and operation for principle of proportionality then propose several suggestions for signing BITs and FTAs in China afterwards..