国际投资中间接征收认定法律问题研究

发布时间：2019-03-29 07:16

【摘要】：征收问题在国际投资方面具有十分重要的地位,它涉及到国家公权力的行使和外国投资者的财产安全。通常认为,征收的表现形式包含直接征收和间接征收。一直以来,直接征收是人们比较关注的问题,人们热衷于探讨直接征收的合法性及其补偿问题。直到1979年伊斯兰革命爆发,伊朗政府对外国投资者资产的干涉被频频指控为间接征收之后,这一问题才引起了广大国际法学者的关注。随着《北美自由贸易协定》的签订,对间接征收的研究进入了一个新的发展期。间接征收规则开始成为投资者的重要风险关切和主权国家的重要政策关切。对于间接征收的规定散见于各种国际投资条约中。诸多国际投资条约中的规定却不甚相同,对其定义、认定标准、认定方法、补偿标准可以说是仁者见仁、智者见智,缺乏一致性。投资自由化的趋势使得国际经济往来日渐增多,全球化程度进一步加深,在国际投资领域的间接征收案例也有所增多。然而在国际仲裁实践中间接征收的认定范围有所扩大,仲裁庭更加重视对投资者财产权利的保护,对东道国的公共利益关注不够。间接征收的认定存在扩大化的趋势,这对国家公权力的正常行使构成了威胁。于是各国开始积极探索解决措施,力求在国家公权力和私人财产权之间达到适度的平衡,在此基础上提出了"效果兼目的标准”,并引入了比例原则。近年来,中国经济取得了快速的发展,吸引外资的能力不断提高,同时中国有了足够的经济实力加大对外投资,“引进来”和“走出去”的步伐大大加快。然而在“引进来”的过程中,政府为了保护国内的重大公共利益,有时会不得已采取一些干涉外国投资者财产利益的行为,这些行为可能会被指控构成间接征收;在“走出去”的过程中,中国的海外投资者也可能面临被间接征收的风险。鉴于可能面临的双重风险,我们应该加大对这一问题的研究力度,善于分析现有投资条约中可能蕴含的风险,不断完善间接征收规则。
[Abstract]:The issue of expropriation plays a very important role in international investment, which involves the exercise of public power and the property security of foreign investors. It is generally believed that the form of expropriation includes direct expropriation and indirect expropriation. People always pay more attention to direct expropriation, and people are keen to discuss the legitimacy and compensation of direct expropriation. It was not until the Islamic Revolution broke out in 1979 that the Iranian government's interference in foreign investors' assets was frequently accused of indirect expropriation, and this issue did not attract the attention of many international law scholars. With the signing of the North American Free Trade Agreement (NAFTA), the study of indirect expropriation has entered a new development period. Indirect expropriation rules have become important risk concerns for investors and important policy concerns for sovereign countries. Provisions for indirect expropriation are scattered in various international investment treaties. However, many international investment treaties have different stipulations. To define them, identify standards, identify methods, compensation standards can be said to be benevolent, wise, and lack of consistency. The trend of investment liberalization is increasing international economic exchanges, deepening the degree of globalization, and increasing the number of indirect expropriation cases in the field of international investment. However, in the practice of international arbitration, the scope of indirect expropriation has been expanded, and the arbitral tribunal has paid more attention to the protection of investors' property rights, and has not paid enough attention to the public interests of the host country. The confirmation of indirect expropriation has the trend of expansion, which threatens the normal exercise of state public power. Therefore, countries began to actively explore solutions to achieve a moderate balance between public power and private property rights, and on this basis put forward the "criteria for both effects and purposes", and introduced the principle of proportionality. In recent years, China's economy has made rapid development, and its ability to attract foreign investment has been continuously improved. At the same time, China has sufficient economic strength to increase its foreign investment, and the pace of "bringing in" and "going out" has been greatly accelerated. However, in the process of "bringing in", in order to protect the major public interests of the country, the government sometimes has to take some acts of interference with the property interests of foreign investors, which may be accused of indirect expropriation; In the process of "going out", Chinese overseas investors may also face the risk of indirect expropriation. In view of the possible double risks, we should strengthen the research on this problem, be good at analyzing the risks contained in the existing investment treaties, and constantly improve the indirect expropriation rules.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D996.4

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