比例原則在間接征收認(rèn)定問(wèn)題中的適用研究
發(fā)布時(shí)間：2019-04-27 09:27
【摘要】：國(guó)際投資領(lǐng)域,對(duì)于間接征收認(rèn)定的爭(zhēng)議經(jīng)久不衰,近年來(lái),間接征收的案例以及規(guī)則呈現(xiàn)擴(kuò)大化的趨勢(shì)更是將這個(gè)問(wèn)題推至風(fēng)口浪尖的位置�？偟膩�(lái)說(shuō),“效果兼顧目的標(biāo)準(zhǔn)”已成為間接征收認(rèn)定的主流標(biāo)準(zhǔn),然而該如何尋找效果和目的之間的平衡點(diǎn),亟需一個(gè)規(guī)范化標(biāo)準(zhǔn)使“效果兼顧目的標(biāo)準(zhǔn)”更具有可操作性。應(yīng)該說(shuō),比例原則的適用為我們指明了方向,且不能排除其在今后的實(shí)踐中會(huì)得到更為廣泛的適用。本文除導(dǎo)言和結(jié)論外分為四章。第一章對(duì)間接征收的起源與現(xiàn)狀進(jìn)行分析,并指出其擴(kuò)大化的趨勢(shì)。間接征收的認(rèn)定問(wèn)題一直以來(lái)都是法院和仲裁庭實(shí)踐中的難題,雖然目前,“效果兼顧目的”的審查標(biāo)準(zhǔn)逐漸被大多數(shù)法院和仲裁庭予以認(rèn)可,但是如何權(quán)衡效果與目的之間的比例,也需要在實(shí)踐中亟待解決。第二章介紹比例原則是什么,并通過(guò)國(guó)內(nèi)法和國(guó)際法兩個(gè)層面,來(lái)論述比例原則在國(guó)內(nèi)法中發(fā)展逐漸成熟,并且逐漸滲透到國(guó)際法各分支的結(jié)論,現(xiàn)今國(guó)際法橫向各個(gè)領(lǐng)域?qū)Ρ壤瓌t基本上予以接納,比例原則儼然已成為國(guó)際法一般原則。國(guó)際條約中對(duì)間接征收的規(guī)定以及比例原則在相關(guān)間接征收條款中的運(yùn)用,得出比例原則已在規(guī)則層面中引入到BITs和FTAs中。對(duì)比例原則對(duì)間接征收的影響進(jìn)行分析,論其在間接征收認(rèn)定中的可行性。第三章介紹比例原則在間接征收爭(zhēng)端中的實(shí)踐,歐洲人權(quán)法院(ECt HR)、NAFTA、ICSID的間接征收案件如何運(yùn)用比例原則,得出比例原則實(shí)踐中已開(kāi)始被采納。此外,試圖分析比例原則的局限性,并提出對(duì)比例原則局限性的應(yīng)對(duì)。第四章對(duì)我國(guó)面臨的間接征收風(fēng)險(xiǎn)以及投資協(xié)定中間接征收條款的風(fēng)險(xiǎn)進(jìn)行分析,得出我國(guó)間接征收條款的不完善,以及比例原則的認(rèn)識(shí)不足,運(yùn)用不足,從而對(duì)我國(guó)今后簽訂BITs和FTAs提出些許建議。
[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.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類(lèi)號(hào)】：D996.4
本文編號(hào)：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.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類(lèi)號(hào)】：D996.4
【參考文獻(xiàn)】
相關(guān)期刊論文 前1條
1 韓秀麗;;論比例原則在有關(guān)征收的國(guó)際投資仲裁中的開(kāi)創(chuàng)性適用[J];甘肅政法學(xué)院學(xué)報(bào);2008年06期
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