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Studies On Legal Issues Of Indirect Expropriation In International Investment

Posted on:2017-04-29Degree:MasterType:Thesis
Country:ChinaCandidate:H F ShengFull Text:PDF
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Levy has been the focus of international investment disputes, it is also one of the core content of foreign investment treaty. In recent years, with the expansion of levy concept, the ways of increasingly diversified, indirect tax has replaced directly imposed as the main mode of the host country government regulation of foreign capital and investors for the host country government put forward the important basis of compensation lawsuit. Lots of international indirect tax cases has happened, such as the Occidental v.E cuador case, TzaYap Shun Valerie plame eru, YoKus v.Russia case. Due to the indirect tax and government regulation behavior has a lot of similarities, on indirect improper understanding and recognition of the easy to make mistakes on the legitimate exercise of the state control interpretation, so as to pose a threat to national power. International investment treaties and international arbitration practice, the provisions on indirect and processing, but at the same time of increasing investment risks for investors, is also bound on national power. If the uncertainty is not solved, property rights and interests of investors and the host country will not be able to get balance of state power, the steady and fast development of the world economic crisis. A clauses in this paper combined with the international treaties, analyzes the definition of indirect tax, proposed should adopt the way of generalization and enumerate the content covered by indirect tax;Secondly, combing the international arbitration institution of indirect tax cases, indirect tax on traditional comparative study on the pros and cons of the standards, can think "effect and objective principle" more profit of investors and the host country, at the same time should also be based on a case, introduced the government measures the degree of impact on investors, proportionality factors such as reasons, in order to realize the individual justice;Once again, "policing exception",the intellectual property rights "compulsory license exception" shall not apply to the indirect tax, should be clear in the treaty;Finally, indirectly the problem of compensation should be adopted "or all, or part, or nothing" pattern, namely no constitute indirect tax, no liability to pay compensation, illegal collection should be indirectly affected people before the property back to the illegal behavior, unable to recover the restorable to pay a price for all legal indirect tax should be given "timely" "efficient" "appropriate compensation".China is in economic transition period, there occurs indirectly on the soil.At the same time, along with the implementation of the strategy of "going out" of China, China has become a great nation of foreign investment, China’s overseas investment is the indirect tax risk is bigger also.However, China’s foreign investment treaty exists many defects, is not conducive to China’s response to the indirect tax risk, therefore, China needs to perfect the indirect tax in foreign investment treaty provisions.In investment treaty with the relevant provisions of the indirect tax in China on the basis of the existing problems are summarized and reviewed in this paper, the paper put forward the improvement of the concrete suggestion:perfect the indirect tax definitions and standards, reasonable regulation of indirect tax exception, specific indirect expropriation and compensation standard, wary of investment disputes jurisdiction.
Keywords/Search Tags:Investment Treaty, Indirect Expropriation, Proportionality Principle, Police Power
PDF Full Text Request
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