Part I The Concept of Expropriation, 4 The Concept of Expropriation in Investment Treaty Arbitration

Subject(s):

Expropriation — Investor — Customary international law

This chapter examines the concepts of direct and indirect expropriation as well as the conditions for lawfulness of expropriation in investment treaty law and customary international law. It first explains the distinction between two broad catagories of expropriation, namely direct and indirect takings, and the different manifestations of direct expropriation (nationalisation, specific takings, requisition, and confiscation). It then describes the four common forms of indirect expropriation: creeping expropriation, regulatory expropriation, contractual expropriation, and judicial expropriation. It also considers efforts at codification of expropriation of customary international law and how investment treaty tribunals recognise the distinction between direct and indirect expropriation. Finally, it explores lawful expropriation vs. illegal, wrongful or unlawful expropriation, taking into account the conditions of legality under customary international law, bilateral investment treaties (BITs) and international investment treaties. A number of cases are given to illustrate whether the State has breached the treaty conditions of legality.