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Part II The Test for Expropriaton, 5 The Test for Expropriation. The Main Factors

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

This chapter considers the main factors in the test for expropriation. It first examines the impact of measures in determining whether there has been an indirect expropriation, focusing on how the courts and investment treaty tribunals deal with the question of substantial deprivation of rights. It then looks at permanent deprivation required in expropriation and the recognition by tribunals that temporary measures can amount to an expropriation. It also discusses cases of expropriation which have been distinguished by tribunals from failed business ventures that have suffered losses as a result of normal commercial risk, the intentions of the State (and purpose of the measure) and whether a State is internationally responsible for both its acts and omissions, and the concept of partial expropriation.

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