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Part II The Test for Expropriaton, 10 Expropriation and Other Treaty Standards

From: Expropriation in Investment Treaty Arbitration

Johanne M. Cox

From: Investment Claims (http://oxia.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. date: 21 March 2023

Expropriation — Investor — Most-favoured-nation treatment (MFN) — Fair and equitable treatment standard — National treatment — Compensation — Standards of treatment — Umbrella clause

This chapter examines expropriation and other treaty standards. It begins with a discussion of expropriation protection in investment treaties as an autonomous standard to other treaty protections, including fair and equitable treatment (FET), full protection and security, national treatment, most-favoured nation treatment, and the umbrella clause. It then considers the overlap that can occur between certain aspects of expropriation and other treaty standards; for example, with respect to non-discrimination or due process. It also looks at cases in which investment treaty tribunals have taken into account the overlap of due process (FET) and non-discrimination (FET, national treatment), the overlap of denial of justice in FET and indirect (judicial) expropriation, and the overlap of legitimate expectations in FET and indirect (regulatory) expropriation when deciding on the lawfulness of indirect expropriations. The chapter concludes by analysing substantial deprivation as a requirement in expropriation.

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