Part IV Guide to Key Substantive Issues, 22 Indirect Expropriation and the Right to Regulate: Has the Line Been Drawn?
From: Arbitration Under International Investment Agreements: A Guide to the Key Issues (2nd Edition)
Edited By: Katia Yannaca-Small
- Indirect expropriation — Compensation — Claims
This chapter focuses on the way in which arbitral tribunals have dealt with indirect expropriation claims based on investment agreements. It also looks at the cross-fertilization with two other sources of jurisprudence which deal with similar issues, under different circumstances and different legal bases, i.e. the US–Iran Claims tribunal and the European Court of Human Rights. The chapter (i) describes the basic concepts of the obligation to compensate for indirect expropriation; (ii) reviews whether and how legal instruments and other texts articulate the difference between indirect expropriation and the right of the governments to regulate without compensation; and (iii) identifies a number of criteria which emerge from jurisprudence and state practice for determining whether an indirect expropriation has occurred, and compensation is due.