Part II Substantive Issues, Ch.11 Expropriation

Subject(s):

Creeping expropriation — Expropriation of contract rights — Indirect expropriation — Regulatory expropriation (or regulatory taking) — Expropriation

This chapter examines problem of indirect expropriation by focusing on the actual judicial and, to a large extent, arbitral practice in the respective fields. At the heart of the investigation is the increased case-law under the ICSID Convention and the ICSID Additional Facility (in particular under NAFTA14 Chapter 11). The practice of the Iran–US Claims Tribunal, ad hoc investment arbitrations and judgments of international courts, such as the International Court of Justice (ICJ) and its predecessor, the Permanent Court of International Justice (PCIJ), are also considered. Equally, the jurisprudence of human rights bodies, in particular of the European Court of Human Rights (ECtHR), on the protection of property rights, which has been considered to be of particular relevance to modern investment arbitration is analysed. Wherever feasible the case-law analysis has been preceded by an examination of the applicable investment instruments.