Study On The Application Of The Principle Of Proportionality In Indirect Expropriation

With the continuous development of international trade,the problem of indirect expropriation is increasingly concerned.The way in which the host country expropriate foreign investors is no longer the direct expropriation,but in a more covert way-indirect expropriation.In this regard,more and more investors have been objected to this covert way of collection.Although there is no uniform criterion for the identification of indirect expropriation in the international community presently,the problem of indirect expropriation is also gradually perfected with constant attention,which has transformed from initially the single effect standard to the single purpose standard,and then the current standard combined with effect and purpose.But how to balance the effect with the purpose has brought us into a new predicament.The introduction of the principle of proportionality in domestic law not only solves the problem of defining the standard of indirect expropriation,but also points out the direction for arbitration practice.By the study of the applicability of the principle of proportion in the practical arbitration of indirect expropriation,This thesis points out the feasibility and limitations of the principle of proportion in the identification of indirect expropriation,which brings related factors for the application of the prinicple of proportion in China,as well as the important enlightenment to our government and overseas investment.There are four chapters in this thesis,The first part mainly introduces the concept and various criteria of indirect expropriation of international investment law.Beginning with the connotation of indirect expropriation,the rules of indirect expropriation in academic circles and treaties are expounded respectively.The standard of identification about indirect expropriation ranges from the single purpose standard to the single result standard,and then the standard combined with effect and purpose in academic circles;from the bilateral investment agreement in the identification,the regional agreement and the ICSID of the indirect expropriation in related agreements and arbitration practice.This also reflects the lack of consistency in the identification of indirect expropriation in the international community.The second part mainly discusses the introduction of the principle of proportionality in the standard of indirect expropriation.The introduction of proportion principle is the beginning of the general semantics of proportion principle.First,it introduces the general connotation of proportion principle,the embodiment of proportion principle in domestic law and international law,and finally analyzes the feasibility of the proportion principle in the indirect collection and identification.The third part mainly introduces the application of the principle of proportionality in indirect expropriation.This part mainly introduces the application of the principle of proportionality in arbitration practice,and analyzes the feasibility and limitations of the principle of proportionality in indirect expropriation.Through the application of the principle of proportionality,it is concluded that the principle of proportionality plays an important role in balancing the interests of host countries and foreign investors.The fourth part introduces the development and inspiration of the principle of proportionality in China.Through the analysisof the example of Ping An company v.Belgium government,this paper points out the influence of the inadequacy of the indirect expropriation clause on the principle of proportion in our country,and then puts forward the factors that should be considered in the application of the principle of proportion in the future,and then puts forward the suggestion of applying the principle of proportion to our government and overseas investors so as to safeguard our country.The legitimate rights and interests of the government and our investors in the sea are finally introduced.In the end,the paper introduces the enlightenment of the principle of proportionality to China's treaty signing and practice in the future.