Research On The Criterion For Identification Of Indirect Expropriation In International Investment Area

With the increase of international investment activities,conflicts between national interests and private interests have become increasingly serious,and more and more arbitration of indirect expropriation has been brought up.In the current international legal text,including the bilateral investment treaties signed between countries,the regulations of indirect expropriation are not consistent.Some of them are too short to apply in concrete terms and some are fuzzy.The three theoretical identification criterion of indirect expropriation,namely the effect criteria,the doctrine of police power and the principle of proportionality,are also criticized by different parties.Therefore,it is necessary to pay sufficient attention to the identification criterion of indirect collection.The key to the solution lies in the application of appropriate criteria to determine whether indirect collection is constituted to balance the national interest and private interests.In the practice of international investment arbitration,different arbitral tribunals will adopt different ways to identify indirect expropriation.By studying the indirect expropriation cases in arbitration practice,it can be seen that effect criteria is conducive to protect the interests of private investors,but the specific requirements and contents of effect are in doubt,and it may be detrimental to the protection of the interests of the state.The doctrine of police power tend to protect the interests of the state,but will the problems of the scope of the public purpose,the existence of public purpose and whether government measures are required to cause certain effects.Thus,this criteria lacks protection for investors' interests.The principle of proportionality also needs to solve the problem of scope of public purposes and whether the effect of impact is required when applicable.In addition,the principle of proportionality is strong in principle and subjective,which is not suitable for the identification of indirect expropriation.Through the comparative analysis of the three criterion,it can be seen that every criterion has its advantages and disadvantages.It is hard to balance investors' interests and national interests with individual standards.These factors can be taken into account in case situations.At the same time,there should be some emphasis on the effect standards,and the standard of public security and the principle of proportion should be used as the auxiliary standard.For the shortages of these criteria,they should be improved,including taking "substantial deprivation" as the effect requirement and specify the specific content of "substantial deprivation",limiting the expansion trend of investment definition,paying attention to the government's control over the improper conduct to public interests of investor and clarifying the application of the principle of proportionality.Thus,it will balance the interests of investors and the state.At present,with the development of foreign investment in our country,for Chinese government and overseas investors,the possibility of encountering indirect expropriation arbitration of is increasing and they can use the various criteria to maintain their own interests.