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Research On The Balance Rule Of Indirect Expropriated Interests In International Laws

Posted on:2020-11-02Degree:MasterType:Thesis
Country:ChinaCandidate:L Z HuangFull Text:PDF
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Over the past decade,the proportion of investment flows and investment patterns has shown great changes in the world.The implementation of China's "going global"strategy and the "One Belt and One Road,initiative have accelerated the pace of participation in global economic integration,showing that the amount of attracting foreign investment and foreign investment has shown an upward trend.Negotiating IIA with other countries or regions is one of the most important measures to develop national economy.The indirect expropriation clause in IIA is the most controversial issue in the field of intermational investment at present,because it concerns how to safeguard the sovereign rights and interests of host countries on the premise of ensuring the protection of foreign investment.The concept and rules of indirect expropriation in the field of international investment are lack of conceptual provisions and the current situation of expansive interpretation of indirect expropriation by international tribunals.Developed sovereign countries,such as the United States and Canada began to pay attention to safeguarding the policy space for the state to take necessary control measures based on public interests from the level of rules of investment agreements.As a developing country,China should draw lessons from this practice to safeguard the sovereign rights and interests of our country,but at the same time,it also needs to take into account the interests of our overseas investors.The preface and conclusion of this paper are divided into five chapters:The first chapter is mainly explains the balance of interests of indirect expropriation.Namely,it demonstrates the risk of defendant in arbitration cases in China and the necessity of overseas investors becoming applicants through case study,taking the cases of China as potential respondents and overseas investors as applicants in recent years.Then,this paper elucidates the necessity of studying the balance of interests of Indirect Expropriation from the identification standard of indirect expropriation,The second chapter introduces the concepts of indirect expropriation and the identification criteria.Employing literature analysis,this paper introduces its origin and the main contradictions it contains,including the concepts of direct,indirect and regulatory levy.At present,the main effort im the rules of investment agreements is to clarify the criteria for determining indirect expropriation,which is also the most controversial and challenging issue.On the premise of introducing the traditional"three-part" criteria,this chapter puts forward the insufficiency of the principle of proportionality in the criteria of "giving consideration to both effect and purpose",and then introducing the rule of public interest and the concept of right to development to solve the problem of how to give consideration to "purpose" in "effect".The third chapter analyzes the innovation of clarification rules of indirect expropriation in bilateral investment agreements signed in recent years,such as application of general and special proportion principles,application of general exception clauses and major security exception clauses.The shortcomings by comparing and studying the relevant indirect expropriation rules and arbitration practices in bilateral investment agreements and domestic laws,and the regulations and the latest development of domestic law will also be analyzed.Based on the previous chapters,the fourth chapter argues how to systematically design and link up the rules of balancing the interests of indirect expropriation in the practice of international treaties and domestic laws.In the international plane,preface of investment treaty,jurisdiction clause,investment definition clause,basic security exception clause and levy clause will be argued;in the domestic level,implementation regulations and rules of ICSID mechanism,connection between investment treaty and domestic and foreign investment legal system,and construction of overseas investment legal system will be analyzed.The fifth chapter combines the "One Belt and One Road" background to solve the international investment disputes in China.Under this background,china has the dual status of capital importing country and capital exporting country.In the face of potential international investment disputes,it is needed to strengthen the study of international arbitration mechanism;to participate in the negotiations of international investment legislation on the premise of safeguarding national economic sovereignty in order to play the leading role of China's investment rules in the field of international investment;and in consideration of the interests and needs of relatively backward developing countries,the principles of the right to development,positive discrimination and differential treatment derived from them are introduced into the rules of international investment treaties.
Keywords/Search Tags:Indirect Expropriation, Interest Balance Rules, Right to Development, Principle of Proportionality, Major Security Exceptions
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