Study On The Eligibility Conditions Of Indirect Expropriation In International Investment

The issue of expropriation is one of the hot topics in international investment.Different from the direct expropriation forms that deprived property ownership frequently in the past,more recently,foreign investors' property rights and interests have been interfered by indirect expropriation in a more concealed way.So far,there is no specific and unified standard for the connotation and recognition of indirect expropriation in theory and practice.Although the indirect expropriation issue is involved in Chinese legislation and practice,on the one hand,in the domestic legislation,the Foreign Investment Law and the Implementation Regulations of the Foreign Investment Law do not have a positive provision for indirect expropriation,on the other hand,in the investment treaty,there are also problems such as vague definition of the concept of indirect expropriation,inconsistent setting of indirect expropriation exception clauses,lack of operability in the introduction of the principle of proportionality,lack of specificity in the content of”legitimate expectations",and arbitration jurisdiction provisions that are prone to abuse risk.China is increasingly playing an important role in the development of the world economy.While continuing to introduce foreign capital,it is also actively“going out".However,the problems in China's indirect expropriation system will not only cause difficulties in the determination of indirect expropriation,but once indirect expropriation disputes occurs,even if the case is brought to the arbitration tribunal,China's overseas investors will risk losing the case.Based on the analysis of the causes of the above problems,this paper puts forward some suggestions on the improvement of China's indirect expropriation system from the aspects of domestic legislation and investment treaty,theory and practice.Firstly,the domestic legislation should be in line with the indirect collection rules in the China Investment Treaty to enhance the interaction between the two.Secondly,adopt a generalization and enumeration model to refine the content of public interest and provide a legal basis for the exercise of foreign capital jurisdiction.Thirdly,to address the vagueness of the provisions of the indirect expropriation clause in the investment treaty,first,the concept of indirect expropriation should be clearly defined,starting from two angles of "investor" and"investment" to ensure the integrity of its content;the extension of legitimate expectations,clarify its specific form,and reduce the occurrence of differences;the third is to improve the indirect expropriation exception clause in accordance with China's specific national conditions,leaving room for the necessary policy implementation.In addition,the principle of proportionality is introduced in the indirect expropriation determination standard,but its operability should be enhanced to give the host country "residual discretion".Finally,for the problem of indirect expropriation oversupply caused by the expansion of jurisdiction,the scope of arbitration jurisdiction should be clarified,and an effective dispute resolution mechanism should be established for different countries.