Research On The Rules Of Compensation For Expropriation In International Investment Law

Since the middle of the 20 th century,the expropriation has been the concern of the international investment law community.The identification of indirect expropriation and the compensation standards for expropriation have even widely discussed.Among them,the compensation for expropriation is directly related to whether the loss suffered by investors can be fully relieved,and has an important impact on the interests of the host country and investors.Therefore,we should pay enough attention to the rules of compensation for expropriation.From the point of international investment law,the current rules of compensation for expropriation are mainly derived from the international investment agreements signed by various countries and customary international law which has formed by universal practice and opinio juris,including “fair market value benchmark”,“damnum emergens and lucrum cessans benchmark”,the rules of determination of interest and payment of compensation.From the view of international investment arbitration practice,the international investment arbitral tribunals have different choices in the application of the rules of compensation for illegal expropriation.It has enriched and developed the rules of compensation for expropriation while applying the rules of compensation for expropriation.In line with the legal practice of compensation for expropriation,although the current compensation for expropriation rules provide certain guidance for the determination of compensation for expropriation,there are still some problems,such as not distinguishing the compensation for indirect expropriation from direct expropriation,not telling the compensation for lawful expropriation from unlawful expropriation,not clearly defining the rules of determination of interest and payment of compensation,which altogether are not conducive to realizing the balance between the interests of the host country and investors.In order to solve these problem effectively,countries should adhere to the principle of fairnessand mutual benefit by specially providing the compensation for indirect expropriation,rationalizing the legitimate elements of expropriation,and perfecting the rules of determination of interest and payment of compensation when setting up the terms of compensation for expropriation.In the legal practice of compensation for expropriation in our country,the same problems exist.So as to solve these problems,in addition to signing new international investment treaties,our country may implement the above proposals which revise and renew the existing rules of compensation for expropriation by re-signing BIT,issuing joint interpretative declarations for existing BITs,signing additional protocols or advancing the signing of multilateral investment agreements under the framework of "one belt one road".Moreover,our country shall take appropriate arbitration strategies in international investment arbitration practice to maximize our own interests.In addition to the introduction and conclusion,this paper is divided into five parts.The first part is the basic theories of the rule of compensation for expropriation,which discusses the differences between indirect expropriation and direct expropriation;expounds the constitutive elements of lawful expropriation;clarifies unlawful expropriation should be different from lawful expropriation in compensation;and explores what standard should be taken for the compensation for expropriation.The second part is current rules of compensation for expropriation in international investment law,which respectively analyzes the origin and connotation of “fair market value benchmark” in the international investment agreements and “damnum emergens and lucrum cessans benchmark” in the customary international law,and discusses the rules of the determination of interest and payment of compensation.The third part is the application of the rules of compensation for expropriation in international investment arbitration,which elaborates the practice of selecting compensation rules of the ICSID,NAFTA,Iran-United States Claims Tribunal and other international arbitration tribunal;summarizes the practice of determining the date of valuation,valuation method and interest by arbitral tribunals;and introduces other factors that may influence thearbitral tribunal to determine the amount of compensation for expropriation.The fourth part is the problems and perfection of the rules of compensation for expropriation,which analyzes the problems existing in the current rules of compensation for expropriation in international investment treaties,and puts forward the corresponding suggestion for the problems.The fifth part is the legal practice and strategies of compensation for expropriation in our country,which clarifies the international treaty and arbitration practice of compensation for expropriation in our country;discusses the problems in the legal practice of compensation for expropriation in our country;and elaborates the corresponding solutions for our country.Through the above content,this paper hopes to provide clear and concrete guidelines for expropriation compensation practice in our country;make reasonable suggestions for the negotiation of international investment agreements and participation in international investment arbitration in future;and earnestly safeguard our national interests and the interests of overseas investors.