[i] BILOUNE AND MARINE DRIVE COMPLEX LTD v. GHANA INVESTMENTSCENTRE AND THE GOVERNMENT OF GHANA《裁决书》，International Law Reports, 第95卷，第209页第3段：“But the Tribunal need not establish those motivations to come to a conclusion in the case. What is clear is that the conjunction of the stop work order, the demolition, the summons, the arrest, the detention, the requirement of filing assets declaration forms, and the deportation of Mr Biloune without possibility of re-entry had the effect of causing the irreparable cessation of work on the project. Given the central role of Mr Biloune in promoting, financing and managing MDCL, his expulsion from the country effectively prevented MDCL from further pursuing the project. In the view of the Tribunal, such prevention of MDCL from pursuing its approved project would constitute constructive expropriation of MDCL's contractual rights in the project and, accordingly, the expropriation of the value of Mr Biloune's interest in MDCL, unless the Respondents can establish by persuasive evidence sufficient justification for these events.”
[ⅱ] Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1，《裁决书》第103段：“expropriation under NAFTA includes not only open, deliberate and acknowledged takings of property, such as outright seizure or formal or obligatory transfer of title in favour of the host State, but also covert or incidental interference with the use of property which has the effect of depriving the owner, in whole or in significant part, of the use or reasonably-to-be-expected economic benefit of property even if not necessarily to the obvious benefit of the host State.”
[ⅲ] Pope & Talbot v Canada，2000年6月26日《临时裁决书》，第100段：“the Investor remains in control of the Investment, it directs the day-to-day operations of the Investment, and no officers or employees of the Investment have been detained by virtue of the Regime. Canada does not supervise the work of the officers or employees of the Investment, does not take any of the proceeds of company sales (apart from taxation), does not interfere with management or shareholders’ activities, does not prevent the Investment from paying dividends to its shareholders, does not interfere with the appointment of directors or management and does not take any other actions ousting the Investor from full ownership and control of the Investment.”
[ⅳ] 王贵国教授，International Investment Law: A Chinese Perspective（《国际投资法：中国视角》），第289页-290页，“it is clear that there is a constant, perhaps inevitable, dynamic between the exercise of police powers and the effect of that on an investment. Recognition of this dynamic has given rise to the application of the principle of “proportionality” in the determination of indirect expropriation. The ‘proportionality test’ serves as a condition for the state to exercise police power, which is essentially derived from the case law of the European Court of Human Rights. In Sporrong & Lonnroth v. Sweden, the Court held that it ‘must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.’ In James and Others, the Court endorsed that position and held that: ‘[n]ot only must a measure depriving a person of his property pursue, on the facts as well as in principle, a legitimate aim ‘in the public interest,’ but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realized” and that “a measure must be both appropriate for achieving its aim and not disproportionate thereto.’ In general, a tribunal, in assessing the proportionality of a government measure, must also consider if there exists an alternative measure which is not unrealistic or so excessively expensive that it would be impossible to implement it to achieve the same purpose. This point was, however, not analyzed in the above case. The ‘proportionality test’ was introduced into international investment arbitration by the tribunal in Tecmed v. Mexico.’......the Tecmed Tribunal considered, in addition to the effects of the government measures, ‘whether such actions or measures are proportional to the public interest presumably protected thereby and to the protection legally granted to investments, taking into account that the significance of such impact has a key role upon deciding the proportionality.’”
[ⅴ] Can Regulatory Freedom Justify Indirect Expropriation in Investment Arbitration?，2019年8月10日Kluwer Arbitration Blog， “One of the most influential decisions on expropriation, Methanex v. United States of America, established the following criteria to determine the legality of expropriation:
(1) lack of genuine (i.e. bona fide) public purpose;
(2) that the measure in question is not designed to achieve the alleged public purpose;
(3) that the measure in question is discriminatory;
(4) lack of due process;
(5) lack of proportionality between the effect of the measure and the public purpose sought to be realized;
(6) a breach of the investor’s legitimate expectation that a particular action would not be taken by the host State;
(7) a breach of the fair and equitable treatment standard; and/or
(8) a direct benefit to the host State from the measure.”
[ⅵ] International Investment Law: A Chinese Perspective，第201页，“The presence (or absence) of procedural fairness is of utmost importance in determining whether a foreign investor has been treated fairly and equitably. Essentially, procedural fairness requires the host state to provide judicial and administrative procedures under which foreign investors’ rights and interests can be adequately heard. This may involve principles of due process and denial of justice, for example. A case that exemplifies this issue is ADC v. Hungary. When addressing the issue of due process in relation to expropriation, the ADC Tribunal stated that this principle ‘demands an actual and substantive legal procedure for a foreign investor to raise its claims against the depriving actions already taken or about to be taken against it.’ In the tribunal’s view, the host state is obliged to maintain such basic legal mechanisms as ‘reasonable advance notice, a fair hearing and an unbiased and impartial adjudicator to assess the actions in dispute.’ At the same time, such legal mechanisms ‘must be of a nature to grant an affected investor a reasonable chance within a reasonable time to claim its legitimate rights and have its claims heard.”In other words, in the ADC Tribunal’s view, a host state must first have the legal procedures available and then must make them work in a reasonable way.’”
Dominican Republic–Central America–United States of America Free Trade Agreement（《多米尼加共和国-中美洲-美利坚合众国自由贸易协定》），第10.5章第2款， “‘fair and equitable treatment’ includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world;”
