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Part II The Test for Expropriaton, 9 Judicial Expropriation

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 examines judicial expropriation, a form of indirect expropriation also known as takings by decisions of national courts. According to the ILC Articles, the conduct of national courts as the judicial organ of the State can be considered an act of the State under international law, and that a denial of justice by the courts of the State in proceedings brought by the other contracting party constitutes a breach of international law. Two issues divide investment treaty tribunals: whether denial of justice is a requirement for judicial expropriation, and whether exhaustion of local remedies, a requirement for denial of justice, is also a requirement of judicial expropriation. These issues are illustrated in a number of cases, such as Loewen Group Inc and Loewen v The United States, Generation Ukraine Inc v Ukraine, Saipem SpA v. The People's Republic of Bangladesh, and GEA Group Aktiengesellschaft v Ukraine.

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