比例原则在间接征收认定问题中的适用研究
发布时间：2019-04-27 09:27
【摘要】：国际投资领域,对于间接征收认定的争议经久不衰,近年来,间接征收的案例以及规则呈现扩大化的趋势更是将这个问题推至风口浪尖的位置。总的来说,“效果兼顾目的标准”已成为间接征收认定的主流标准,然而该如何寻找效果和目的之间的平衡点,亟需一个规范化标准使“效果兼顾目的标准”更具有可操作性。应该说,比例原则的适用为我们指明了方向,且不能排除其在今后的实践中会得到更为广泛的适用。本文除导言和结论外分为四章。第一章对间接征收的起源与现状进行分析,并指出其扩大化的趋势。间接征收的认定问题一直以来都是法院和仲裁庭实践中的难题,虽然目前,“效果兼顾目的”的审查标准逐渐被大多数法院和仲裁庭予以认可,但是如何权衡效果与目的之间的比例,也需要在实践中亟待解决。第二章介绍比例原则是什么,并通过国内法和国际法两个层面,来论述比例原则在国内法中发展逐渐成熟,并且逐渐渗透到国际法各分支的结论,现今国际法横向各个领域对比例原则基本上予以接纳,比例原则俨然已成为国际法一般原则。国际条约中对间接征收的规定以及比例原则在相关间接征收条款中的运用,得出比例原则已在规则层面中引入到BITs和FTAs中。对比例原则对间接征收的影响进行分析,论其在间接征收认定中的可行性。第三章介绍比例原则在间接征收争端中的实践,欧洲人权法院(ECt HR)、NAFTA、ICSID的间接征收案件如何运用比例原则,得出比例原则实践中已开始被采纳。此外,试图分析比例原则的局限性,并提出对比例原则局限性的应对。第四章对我国面临的间接征收风险以及投资协定中间接征收条款的风险进行分析,得出我国间接征收条款的不完善,以及比例原则的认识不足,运用不足,从而对我国今后签订BITs和FTAs提出些许建议。
[Abstract]:In the field of international investment, the dispute of indirect expropriation has been persistent for a long time. In recent years, the case of indirect expropriation and the trend of expanding the rules of indirect expropriation have pushed this problem to the top of the air. In general, the criterion of "effect giving consideration to purpose" has become the mainstream standard of indirect expropriation. However, how to find the balance between effect and purpose is urgent for a standardized standard to make the criterion of "effect giving consideration to purpose" more operational. It should be said that the application of the principle of proportionality points out the direction for us, and it cannot be ruled out that it will be more widely applied in future practice. In addition to the introduction and conclusion, this paper is divided into four chapters. The first chapter analyzes the origin and present situation of indirect expropriation, and points out the trend of its expansion. The question of the determination of indirect expropriation has always been a challenge in the practice of courts and arbitral tribunals, although, at present, the review criteria of "balance of effect and purpose" are gradually recognized by most courts and arbitral tribunals. However, how to balance the ratio between effect and purpose needs to be solved urgently in practice. Chapter II introduces what the principle of proportionality is, and through both domestic law and international law, it discusses the conclusion that the principle of proportionality has gradually matured in domestic law and has gradually penetrated into the branches of international law. Nowadays, the principle of proportionality is basically accepted in all fields of international law, and the principle of proportionality has become a general principle of international law. The rule of indirect expropriation in international treaties and the application of the principle of proportionality in the relevant provisions of indirect expropriation show that the principle of proportionality has been introduced into BITs and FTAs at the level of rules. This paper analyzes the influence of the principle of proportion on indirect expropriation, and discusses its feasibility in the identification of indirect expropriation. The third chapter introduces the practice of the proportional principle in the indirect expropriation dispute, how to apply the proportional principle in the indirect expropriation cases of the European Court of Human Rights (ECt HR), NAFTA,ICSID), and concludes that the proportional principle has been adopted in the practice of the indirect expropriation principle. In addition, this paper attempts to analyze the limitation of the principle of proportionality, and puts forward the countermeasures to the limitation of the principle of proportionality. The fourth chapter analyzes the indirect expropriation risk faced by our country and the risk of indirect expropriation clause in the investment agreement, and draws a conclusion that the indirect expropriation clause in our country is not perfect, and the understanding and application of the proportion principle is insufficient. Therefore, some suggestions are put forward for China to sign BITs and FTAs in the future.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D996.4
本文编号：2466861
[Abstract]:In the field of international investment, the dispute of indirect expropriation has been persistent for a long time. In recent years, the case of indirect expropriation and the trend of expanding the rules of indirect expropriation have pushed this problem to the top of the air. In general, the criterion of "effect giving consideration to purpose" has become the mainstream standard of indirect expropriation. However, how to find the balance between effect and purpose is urgent for a standardized standard to make the criterion of "effect giving consideration to purpose" more operational. It should be said that the application of the principle of proportionality points out the direction for us, and it cannot be ruled out that it will be more widely applied in future practice. In addition to the introduction and conclusion, this paper is divided into four chapters. The first chapter analyzes the origin and present situation of indirect expropriation, and points out the trend of its expansion. The question of the determination of indirect expropriation has always been a challenge in the practice of courts and arbitral tribunals, although, at present, the review criteria of "balance of effect and purpose" are gradually recognized by most courts and arbitral tribunals. However, how to balance the ratio between effect and purpose needs to be solved urgently in practice. Chapter II introduces what the principle of proportionality is, and through both domestic law and international law, it discusses the conclusion that the principle of proportionality has gradually matured in domestic law and has gradually penetrated into the branches of international law. Nowadays, the principle of proportionality is basically accepted in all fields of international law, and the principle of proportionality has become a general principle of international law. The rule of indirect expropriation in international treaties and the application of the principle of proportionality in the relevant provisions of indirect expropriation show that the principle of proportionality has been introduced into BITs and FTAs at the level of rules. This paper analyzes the influence of the principle of proportion on indirect expropriation, and discusses its feasibility in the identification of indirect expropriation. The third chapter introduces the practice of the proportional principle in the indirect expropriation dispute, how to apply the proportional principle in the indirect expropriation cases of the European Court of Human Rights (ECt HR), NAFTA,ICSID), and concludes that the proportional principle has been adopted in the practice of the indirect expropriation principle. In addition, this paper attempts to analyze the limitation of the principle of proportionality, and puts forward the countermeasures to the limitation of the principle of proportionality. The fourth chapter analyzes the indirect expropriation risk faced by our country and the risk of indirect expropriation clause in the investment agreement, and draws a conclusion that the indirect expropriation clause in our country is not perfect, and the understanding and application of the proportion principle is insufficient. Therefore, some suggestions are put forward for China to sign BITs and FTAs in the future.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D996.4
【参考文献】
相关期刊论文 前1条
1 韩秀丽;;论比例原则在有关征收的国际投资仲裁中的开创性适用[J];甘肃政法学院学报;2008年06期
，本文编号：2466861
本文链接：https://www.wllwen.com/falvlunwen/guojifa/2466861.html
