Part II The Test for Expropriaton, 6 Creeping Expropriation

Subject(s):

Expropriation — Investor

This chapter focuses on creeping expropriation, a form of indirect expropriation which often manifests itself in cases of regulatory, contractual and judicial expropriation. There are two main points to consider in instances of creeping expropriations in investment treaty arbitration: first, the measures in the chain of events which are said to constitute the expropriation, and second, the final act or omission which crystalises the taking (that is, the measure that becomes the ‘final straw’). The chapter discusses several cases of creeping expropriation, including three handled by the Iran–US Tribunal: Phelps Dodge Corp v Islamic Republic of Iran, Amoco International Finance Corporation v Islamic Republic of Iran, and Phillips Petroleum Company v Islamic Republic of Iran. Investment treaty tribunals have also recognised the concept of creeping expropriation in cases such as Waste Management, Inc. v. United Mexican States and Generation Ukraine v. Ukraine.