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Part IV Concluding Remarks, 15 Concluding Remarks

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 — Legitimate expectations — Customary international law — Compensation — Reparations

This concluding chapter discusses certain principles on expropriation that are settled as well as the fundamental tensions in the case law that continue to exist. The settled principles include the following: expropriation is not per se unlawful under international law; a wide array of property rights, including tangible and intangible assets, can be expropriated; the customary international law remedy for unlawful expropriation is the principle of full reparation. On the other hand, some of the tensions that exist relate to the legality requirements for expropriation; whether omissions or acts can constitute expropriatory acts; the role of legitimate expectations and proportionality in the test for indirect (regulatory) expropriation; the concept of partial expropriation; and whether the HULL standard represents customary international law today. The chapter concludes by revisiting the question of whether any of the settled principles in the case law translate into — or otherwise manifest themselves — in customary international law.

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