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Research On The Identification Standard Of Indirect Expropriation In Chinese Bilateral Investment Treaties

Posted on:2019-06-05Degree:MasterType:Thesis
Country:ChinaCandidate:J J DengFull Text:PDF
Abstract/Summary:PDF Full Text Request
In the international investment law,how to determine whether the behavior of the host country constitutes an indirect expropriation must be determined by a certain standard.And what standard should be applied,there is no definitive conclusion.Because of this,in the international arbitration practice,once the case involves the determination of indirect expropriation,the arbitral tribunal in the trial and adjudication,the choice of the standard of determination is difficult to reach a consensus.The arbitral tribunal is mainly applicable to the determination of three kinds of standards:sole effect test,sole purpose test,effect and purpose test.The sole effect test tends to protect the property interests of foreign investors and fails to take into account the interests of the host country.The sole purpose test tends to protect the interests of host countries while ignoring the interests of foreign investors.The effect and purpose test,which is intended to balance the.interests of both host countries and foreign investors.Since then,a number of new cases have emerged,prompting the introduction of several principles into the standard of determination.Although they can not replace the original standards,but it is able to determine the or.iginal standards,especially for the effect and purpose test to play an auxiliary role,but also to help solve the host country and foreign investors in the interests of the dispute.Up to this day,although our country has to sign bilateral investment treaties with all over the world about hundred countries,however,a bilateral investment treaty model has not been developed for reference in negotiating and signing contracts' with other countries.In the bilateral investment treaty with other countries,the limitation of the standard part of indirect expropriation is still obvious.It is very important to provide the defect of the measure to make up the standard,such as defining the definition of indirect expropriation,clearly defining the scope of the public interest,unifying the applicable rules of the principle of proportionality,and an explarnation for limiting the reasonable expectations of foreign investors.Through the improvement of the standard,we can draw on the experience of the indirect expropriation standard in the model of bilateral investment treaty formulated by the United States,Canada and other countries,and combine the standard of the indirect expropriation in the bilateral investment treaties signed by our country,so as to draw up the standard model of the indirect expropriation.The model was also applied to future bilateral investment treaty negotiations and agreements as part of a bilateral investment treaty.
Keywords/Search Tags:indirect expropriation, Bilateral Investment Treaty, sole effect test, sole purpose test, principle of proportionality
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