Study On The Issues Of Compulsory License Constituting Indirect Expropriation In International Investment

Recently,with the development and integration of economic in the international community,the international investment field has flourished and became an important part of the economic chain of many countries.The definition of investment object in international investment law becomes more complicated and diversified.With intellectual property being formally included in the scope of investment and the expansion of the application of indirect expropriation,the compulsory licensing system in the field of intellectual property law and the indirect expropriation system in the field of international investment law have gradually merged and triggered a series of controversies.For example,the issue of compulsory licensing of multiple drug patents in Thailand and Brazil has not been resorted to investment arbitral tribunals,but has caused extensive discussion among people from all walks of life.Compulsory license and indirect expropriation have certain similarities about their system.They are the system in which the governments' behavior causes the property of the right holder to be damaged to a certain extent and governments have to compensate for their damage.It is the competition between public and private rights.The difference is that the legislative purpose behind compulsory license is that the public interest is first.However,indirect expropriation focuses more on the protection of investors' rights.Therefore,there are many contradictions behind the issue that compulsory license constitutes indirect expropriation.Judging from the standard of indirect expropriation,following the principle of effect and purpose and the principle of proportionality,compulsory license complies with the standards of having economic impact on investment,intervening the reasonable expectation of investors and matching the requirement about purpose of government behavior.Therefore,it may appear in the case that compulsory license constitutes an indirect expropriation.Once the compulsory license is identified as an indirect expropriation in practice,it will have different effects on the interests of both investor and the host country.While giving investors higher intellectual property protection and new way of settling intellectual property disputes,it also limits the protection of public interest in the host country and increases the compensation burden of the host country.At the institutional level,it also has a certain impact on the traditional international intellectual property protection of the TRIPS system.Therefore,in order to cope with the problems and contradictions caused by the indirect expropriation of compulsory license,China should stand on the dual perspective of capital exporting countries and capital importing countries,and consider China's big country status and international obligations,to increase and refine the relevant provisions of indirect expropriation in the domestic Foreign Investment Law and investing agreements with foreign countries.And also should carefully consider the issue of compulsory license as an indirect expropriation,in order to increase foreign investment and seek a better balance between domestic public interests and foreign investors' rights,as well as protect Chinese investors to foreign countries as much as possible.The main body of this paper is divided into four chapters to explain the above problems.The first chapter explains the generation of problem that whether compulsory license constitutes indirect expropriation through the relationship between compulsory license and indirect expropriation,and the consistency of their objects.The second chapter is the identification of whether compulsory license constituting indirect expropriation,which is discussed in detail from three aspects:the standard of identification,the present situation and differences of identification,and the specific situations of identification.The third chapter analyzes the positive and negative effects of compulsory license constituting an indirect expropriation to the international intellectual property legal system and the investor and investment host countries.In the last chapter,the author gives some advices from the perspective of China,including the method of identification about compulsory license constituting indirect expropriation and the provisions of the indirect expropriation system in China's domestic law and international investment agreements that China has signed.