Determination of Indirect Expropriation by Host Country IP Measures in ICSID Arbitration

DOI: https://doi.org/10.62517/jel.202514503

Author(s)

Lijing Wu*, Shuo Wang

Affiliation(s)

School of Humanities and Law, North China University of Technology, Beijing, China *Corresponding Author

Abstract

In the context of the dispute over the adaptation of indirect expropriation theory of international investment law to the special attributes of intellectual property, this study focuses on the determination of indirect expropriation of intellectual property measures in the host country in ICSID arbitration, in view of the limitations of traditional standards that do not fully pay attention to the "legal creation" and "public interest carrier" of intellectual property. Through conceptual deconstruction, proposition deduction and theoretical dialogue, this paper constructs a four-dimensional identification framework of "core value destruction - reasonable expectation failure - proportional balance - logical boundary". It is found that the premise of indirect expropriation of intellectual property rights is the substantial destruction of the realization of core value, and the core is the failure of investors' reasonable expectation of the stability of the legal framework. It is necessary to balance public interests and losses through the principle of "true, necessary and balanced" proportion, and the measures should meet the boundary between pertinence and urgency of public interests. Conclusion This paper revises the applicable boundary of traditional indirect expropriation theory, integrates effect-oriented and purposive-oriented disputes, and provides an operational identification tool for ICSID arbitration practice.

Keywords

ICSID Arbitration; Host Country's Intellectual Property Measures; Indirect Expropriation; Reasonable Expectation; Principle of Proportionality

References

[1]Jason Haynes. The Evolving Nature of the Fair and Equitable Treatment Standard: Challenging Its Increasing Pervasiveness in Light of Developing Countries Concerns. Journal of World Investment & Trade, 2013, 14(1), 114-146. [2]Wang Xiaolin. On the Reasonable expectation Standard in the Judgment of Indirect Expropriation of International Investment. Journal of Guangxi University for Nationalities (Philosophy and Social Sciences), 2016(03), 141-145. [3]Maimutiming Rexiti, Shen Wei. Multiple Dimensions of Public Interest in the Context of Indirect expropriation and the Interpretation path of proportionality Principle. Journal of Central South University (Social Sciences Edition), 2020(04), 82-99. [4]Sun Chengcheng. Thinking on Decision Path and Countermeasures of Indirect exaction in International Investment. Zhejiang Social Sciences, 2020(08), 39-44. [5]Stephan W. Schill A. Balanced Approach to Distinguishing Between Legitimate Regulation and Indirect Expropriation. International Trade and Business Law Review, 2012, 15(2), 254-296. [6]Christina Knahr. Indirect Expropriation in Recent Investment Arbitration. Austrian Review of International and European Law, 2010, 12(6), 83-102. [7]Zhang G. On host country's environmental measures and indirect expropriation: Based on several international investment arbitration cases. Law Forum, 2016(04), 61-68. [8]Jason Haynes .Reconceptualizing Indirect Expropriation in the Post-Neoliberal Era. Leiden Journal of International Law, 2018, 31(3), 583-605. [9]Sun Cheng. Key Elements and Countermeasures for Indirect Expropriation in International Investment. Theoretical Tribune, 2020(01), 78-85. [10]Stephan W. Schill & Geraldo Vidigal. Cutting the Gordian Knot: Investment Arbitration and the Digital Economy. ICSID Review, 2021, 36(2), 399-427.