Two.USA inInternational efforts

In the context of international law, American government signed a number of bilateral treaties and agreements on the protection of investment in other countries, the treaties and agreements although not part of their overseas investment insurance system, but as a supplement and security means, it is an important part of USA overseas investment insurance system, for overseas investment insurance system the effective implementation of the American significance. Therefore, we might as well make an analysis on it, to have a look USA is carefully designed to use international law to cooperate with domesticOPICDomestic investment, protection.

(a) the modern navigation treaty

America is its traditional FCN Treaty on the protection of international investment is the most typical countries. It's called modern navigation treaty, because, although American in1778Years with the French made the world's first friendly treaty of Commerce and navigation, but it was not until after the Second World War, USA began to adopt new good Treaty of Commerce and navigation samples, make a major readjustment of the whole treaty contents and structure, greatly enhance the protection of international investment in terms of the component, therefore, America treaty truly focus on the protection of international investment beginning in the modern navigation treaty. This paper also introduces modern treaty.

In the FCN treaties, and investment is most closely related to regulations include: Regulations on Covered companies; provisions for foreign nationals and their property treatment; provisions on nationalization or expropriation and compensation; and on the national capital and income of foreign exchange regulations etc.. And investment protection mechanism America domestic (at that timeOPICHas not yet established) response is the main content of nationalization or expropriation and compensation. For nationalization or expropriation and compensation, America after years of exploration, on the implementation of the expropriation and nationalization [19], especially the compensation standards which were provided, and the standard still is:

1For the need of public interest

The provisions of the treaty, each Contracting Party "unless for public purpose", otherwise, shall not be levied on the property of nationals of the other contracting party. With the current perspective, and the provisions mentioned above domestic insurance contract is the mutual coordinate, the host country must impose requirements for the public purpose, not for the public purpose is USA will take measures for the protection of the expropriated u.. In the now, is aOPICFor underwriting.

2Non discrimination

After World War II, USA modern navigation treaty provisions often, a contracting party to nationals of the other Contracting Party shall be the property, national treatment and most favored nation treatment. In addition,1949Years after the American FCN treaties stipulate, a Contracting Party shall not be "unreasonable or discriminatory" damage to the other Contracting Party's property, the United States certainly think, this kind of absolute treatment standard is also applicable to expropriation and nationalization.

3Compensation

After World War II American of expropriation or nationalization compensation also went through several revisions, the earlier treaty provides only "full and fair compensation" or "sufficient and adequate compensation" standard of compensation, the very abstract "just compensation" standard,In modern times, AmericaFrom Mexico by the lesson [case20], according to the "Hull formula" the compensation amount of compensation, compensation for the specific decomposition time and monetary compensation from three aspects, provides a comprehensive "full, timely, effective" three principles. On the core problem in which the amount of compensation the nationalization and expropriation compensation,1951Years later America FCN treaty standard terms and makes specific explanation, namely "full compensation" must be "equivalent to full value expropriated property".

Because the treaty now there are countries in use, especially the standard in use today, as a result, the expropriation and nationalization issue, the signing of the treaty makes American domestic legislation and the provisions of the contract to be accepted in the other Contracting State.

With the increasingly frequent international exchanges and the world political and economic situation changes, for various reasons, the treaty USA design has been unable to meet the needs of the new era, can not effectively protect the America overseas investment, which has gradually be eliminated. However, as the new treaty's predecessor, FCN treaties had played a role to protect us, but also for the later treaty development experience, but there are still many treaty remains in force, is often invoked the processing of international investment disputes between the contracting parties, therefore, FCN treaty America in the context of international law to protect overseas investment is important one annulus.

Two.   Investment Guarantee Agreement

Since the establishment of the world's first overseas investment insurance system, American has been planning the design of a new treaty, to ensure the smooth operation of the system. USA in1951Years of pioneering and vigorously promote the topic of "investment guarantee agreement". Also after unceasing revising, there is now a sample agreement mature to negotiations with foreign countries as a reference. Chinese and America government and in October 30, 1980 signed the "to encourage investment in the people's Republic of China and the government of the United States government on investment insurance and Investment Guarantee Agreement and the exchange of letters" related issues in Beijing [21]. Such agreements are not separated from the following several important issues:

1On the right of subrogation problems

On the Sino US exchange as an example, the exchange shall: (1)"...... Executive Overseas Private Investment Company independent government, the investment of insurance and guarantee and set up by the United States laws." (2 ) 'coverage' to America Overseas Private Investment Company shall prevail3") of the people's Republic of China government should admit the payment and transfer to the contractor any monetary, credit, assets or investments, and that any existing or possible, ownership rights, claims or litigation right insurer inheritance......"

Seen from the above, for clearly states the "Overseas Private Investment Company" is USA investment political risk insurance, such not only in the domestic America the provisions on investment insurance contract based on the relationship between investment insurance and become the US invested legal disputes in the lawsuit the stakes, and, according to the exchange regulations the people's Republic of China confirmed the inheritance right of action "substitution" relationship, which can be directly involved in the dispute into the party.

This would solve the problem of the right of subrogation, because, usually in the overseas investment insurance agencies to pay compensation to the investors, according to its domestic law or contract of insurance subrogation rights of investors, and to recover the host country as a developing country, the exercise of the right of subrogation in the host country government admitted that only under the conditions for effective. However, the developing countries are often not recognized in the domestic law of developed countries overseas investment insurance subrogation provisions, and damage such as protection of diplomatic power to customary international law to protect investors from the host country's political risk, its effect and influence is not American governments hope. In simple terms, it does not want direct confrontation between governments, it hopes to use the better way to solve these problems, to maximize their own interests. Therefore, once the investment guarantee agreement, the willingness to admit subrogation America Overseas Private Investment Company, also recognized the compliance obligations of international law. So, from domestic private contractual relationship of this kind of right of subrogation in "internationalization", "public law".

2The host jurisdiction problem

According to the principle of national sovereignty, state on the territory of all legal disputes, except some limited by international law or treaty obligations, enjoy full jurisdiction, in the expropriation claims jurisdiction issues, the United Nations General Assembly held in1962Years and1974The "provisions on permanent sovereignty over natural resources decision" and "the Charter of economic rights and duties" are officially made the priority application of domestic law. But on the other hand, is also based on the principle of the sovereignty, the Charter of the United Nations provides encouraging parties through consultation, to choose other ways to settle the dispute peacefully principle. So USA actively using this principle, in some private investment guarantee agreement [22] provisions, in case of subrogation claim problems caused by expropriation compensation, the two sides should be negotiated, as in a certain period of time can not reach an agreement, then submitted to international arbitration. So, USA by domestic insurance contract with international guarantee directly linked to the agreement, in the expropriation claims disputes, jurisdiction as far as possible to avoid the host. Moreover, through negotiation, also can put the standard calculation of damages as much as possible (at least partially) in their own hands, so as to avoid as much as possible or to bypass obstacles expropriation compensation issues on the international.

3Protection of overseas investment non US company

We mentioned earlier, for the qualified investors, USAOPICBill is a broad definition, including does not have the American Foreign Company, but its assets95%For American citizens or enterprises all. Such Foreign Company can also refer to the American insured, so that USA expand the scope of protection based. But according to the customary international law, a country to claim for sb suffer damage to the host country in the host country, must first prove that the man is its citizens (natural or legal persons). Because of the "one country received a national its case, on behalf of the national diplomatic action or international judicial procedure, in fact is that it's own right - to ensure its people respect the rules of international law rights." 23]

We found that, the insured in the host country are damaged, as investors, does not have the underwriter nationality (if not with America nationality overseas company, to an investment in developing countries, according to its USA nationality of the parent company or shareholders toOPICThe insured), inOPICGiven the non American insurance company after the subrogation to the host country claims, once the subrogation dispute between the international judicial process solution, American government cannot take the companies for their citizens to exercise their litigation rights grounds.

So, in the bilateral security agreements with the host, American counsel, is host to acknowledge generally USA domestic insurance contracts, admitOPICThe American various rights of subrogation, so in case of the above situation, American government can invoke the provisions of domestic law and bilateral agreements, as the legal basis for diplomatic protection, strive to be the plaintiff in the International Court of justice.

Three.   The investment protection agreement

This new class of bilateral investment treaties model was developed by the European countries in the FCN treaty tradition and investment guarantee agreement based on the created, its content includes both the substantive provisions, including procedural provisions. But at present, the investment protection agreement is one of the most common a bilateral investment treaty is the most effective.

America has always been more inclined to navigation treaty and Investment Guarantee Agreement for the protection of transnational investment, but to see some European countries have already got rid of the old mode of the traditional FCN treaty, to simplify, smooth with some developing countries concluded bilateral "investment protection treaties", specifically for some problems, the relevant the investment agreement, feel oneself have lagged behind in this area, we must speed up the pace, and so on1983Introduced the model conforms with the national interests and has its own characteristics.

This kind of agreement USA has two features:

First, the investment protection agreement USA adhere to the "high standards" to protect the America overseas private investment, if the foreign levy to give "full, timely, effective" compensation; on capital and profits in foreign exchange shall be free; and various investment disputes shall be submitted to international arbitration.

Second, American investment protection agreement is a tool USA foreign policy, American often according to its foreign policy to decide whether an investment protection agreements with other countries, usually with American split in developing countries, USA declined to sign such an agreement with them, even signed, American Senate will not approve [24].

But the investment protection agreement USA from beginning to the obstacles, the key lies in the America still cling to some old "international law belief" [25]. As mentioned above, he gave us on the host country's salary is very high, coupled with overseas us in the course of their business profitable, the high handed behavior, and even some of the Passover of the sovereignty of the host country is in an invidious. At the same time, developing countries have also gradually confrontation with, rather than by the oppressed.

However, after a run and adjustment and other countries, America or signed investment protection agreements in great quantities, which again give recognition and affirmation of the insurance contract [26], but not about subrogation clause [27]. In this way, the topic of a treaty is essential. Therefore, in the context of international law, foreign investment America signed the agreement and investment protection agreement will run parallel, and can complement each other.

Three,The operation mechanism America private overseas investment insurance

Now, the idea of our overseas investment insurance system America domestic institutions and international treaty arrangements, they are in practice and how to use it?Through the above knowledge we can conclude, its operating procedures should be as follows:

First of all, by American government and investment projects, the host government signed international agreements, the two sides agreed to byOPICNon commercial risk underwriting such investment may be encountered in host countries, and recognized as an underwriterOPICFuture shall enjoy the right of subrogation. Secondly, by the overseas investors andOPICThe risk of non commercial on the selected category contracts for insurance, and pay insurance premium. Finally, once the coverage of risk accident, byOPICFor confirmation and settlement, so as to obtain the right of subrogation, the host governmentClaim for compensation.

America through domestic law and international treaty arrangement makes this procedure can be implemented smoothly, but in practice, as a rule American does not follow the rules, rigid, but the best protection capabilities,1974Years Raynor des metal company claims case is a typical example, we present the case to illustrate its investment insurance system using America how to perfect, to solve practical problems.

Raynor des metal company is a legal person registered in the America delaware.1965Years, the company reached an agreement with the government of British Guyana, investment in the territory of the opening Raynor des - Guyana mineral company, operating the bauxite mining industry.1968Years Raynor des metal company (company) to reynier des - Guyana mineral company (subsidiary) invested huge capital to new, updated and expanded mining equipment. At the same time, the parent company to the insured American agency for international development at that time on the new investment. The two sides signed a guaranteed investment contract.

British Guyana1966Years5Months after the declaration of independence, and further to1970Years2Tsukinari Takeiana's Republic of China, adopted a series of safeguarding national interests, national economic development, new measures.1971Years, Guyana bill through Parliament, decided to national economic lifeline aluminum mining industry nationalization.1974Years7Month, the Guyana government of prime minister Folbers Bernam announced: Guyana government plans to further1974Before the end of the year on the territory of the U. S. Raynor des - Guyana mineral company to nationalization measures. The same year9Month, the Guyana government promulgated a new regulation on bauxite levy, the original tax rate increased more than ten times. At this time, the reason USA "agency for international development" in charge of overseas funded insurance business to "Overseas Private Investment Company" by all undertake for. The insured and insurer renle des metal company Overseas Private Investment Company after close consultation, decided to command the domestic subsidiary company taxes do not pay.

Therefore, the Guyana government ordered a ban on aluminum mineral soil fails to pay the new tax shipment shipment. Raynor des metal company immediately to withdraw all American workers from the territory of Guyana, interrupt the bauxite mining, dismissal of a large number of the workers. The relationship between the two sides become rigid [28].

In accordance with the relevant laws American, company thinks, the case belongs to the America investment guarantee provided for in the contract "expropriation risk", that is the host country for the national public need to decide the nationalized the territory of foreign enterprises [29]. And since the government announced the acquisition to the insured requests with a years time requirements. In view of the insured claim against the insurer money problems has been officially put on the schedule, as the insurer Overseas Private Investment Company take the following steps to complete processing the risk accidents, solving the legal dispute.

First of all, it urged the U. S. Raynor des company (sub) tax, its deep intention can make nothing of it [30], but as an insurance company, the parties directly it at the moment it is not the case, but to interfere, request the applicant to act according to his will, which is theOPICOne of the characteristics of problem solving.

Secondly, as the parties of actual or potential clients, with its "facilitator" status to "mediation", Guyana in the territory of the US funded enterprises owned by the state, namely first agreed by the Higashido Kunikeiana administration to pay huge compensation for expropriation. The deterioration of the US funded enterprises and host country relations, Overseas Private Investment Company quickly appointed experts to Guyana in the field survey, and finally decided that: the enterprises now total assets worth about1450Million, deducting the arrears of the host country taxes, assets of approximately1000Million dollars.1974Years11Month,OPICRepresentatives met with Guyana's prime minister Bernard M, put forward specific proposals to solve all disputes.1974At the end of last year, the government of Guyana with the American parent company (the insured), subsidiary, andOPIC(insurer) signed a settlement agreement Quartet "". The main point is: by the government of Guyana to pay the expropriation of the US funded enterprises net compensation1000Million dollars. Since the1976Years1Month, the Guyana government should be in the13Years in installments, pay off the money, plus8.5%Annual interest. Direct beneficiary the amount of the Overseas Private Investment Company.

Thirdly, proclaimed the "reconciliation agreement": since the date of signing the agreement,OPIC"To obtain the right of subrogation", and can completely or partially to the transfer of rights of others. Because the sum of compensation to issue bonds form, therefore, the Overseas Private Investment Company in Gui government bonds, then by virtue of the company enjoys in the American domestic and foreign high credit, to guarantee on these bonds deliver on time, and then in the bond market, it quickly to sell, resell them to other individuals or companies, get lots of cash, and then by the Overseas Private Investment Company pay some amount, get $10000000 in cash.

Finally, in February 20, 1975, the original investment guarantee contract risk insurer OPIC January to the applicant Ray Nordest metal company a cheque, $10000000, for the latter's immediate cash cash, as the expropriation risk accident compensation. At the same time, both on the same day under a written Testament, in addition to the common confirm the above facts, the original insured Raynor des metal company make the following pledge: the company with immediate effect to completely abandon any claim rights according to the investment guarantee contract shall be entitled, all claims to the Overseas Private Investment Company; future Overseas Private Investment Company or other creditors such as Yinguiya the government of the bond issue legal dispute with the government of Guyana, Raynor des metal company shall provide all kinds of cooperation, namely, the company in obtaining compensation after the accident risk, prompted the Guyana government debt problem, still have to participate in the litigation obligations.

Under the agreement, the debt owed to the government of Guyana1988Years1Month to pay off. And from the1976Years to1988In this13Years, with interest to be paid1826Million, nearly two times the original compensation gold.

The overseas Private Companies has always been the case of handy and pleased with oneself, think that this is the company to solve the expropriation risk is one of the best case dispute. Because in the case handling process, the company to "mediator" act in collusion with their own identity, not only no loss, but also can satisfy the claim America investor, and earned from the government of Guyana thick interest. [31]

In general, America adopted the practice in practical cases:1In the event of accident, the insured for underwriting, did not immediately pay insurance gold, but by the insured in the back should do or act as mediator in the host country mediation between the insured and the;2Finally succeeded in the settlement agreement reached between the parties, obtain the right of subrogation by the protocol, to issue bonds to pay for the form of compensation from the host government;3And then resold bonds, to raise cash, the cash payment to the insured.OPICThe processing method is flexible, does not follow what we summed up the general insurance program, because as we have seen, that it is to avoid confrontation between the government of the objective, but also to maximize the profit.

But the fundamental and cannot do without its domestic law and international treaty to arrange and bedding. On the domestic level, the domesticOPICThe act and the investment of insurance contract has been associated with the investment insurance matters, the status of the parties shall be determined from the law; on the international level, the bilateral treaty willOPICThe right of subrogation to guarantee. As mentioned earlier, provisions in the treaty in negotiations, negotiations to resolve disputes also has a precedent. In the absence of legal obstacles case,OPICDo a job with skill and ease in handling the cases of nature.