6.01 Creeping expropriation is a series of acts and omissions which, over a period of time, and at a certain point, crystallizes or ripens into an expropriation. It is a form of indirect expropriation and in modern times often manifests itself in cases of regulatory, contractual, and judicial expropriation. The two main points to identify in instances of creeping expropriations in investment treaty arbitration are, firstly, the measures in the chain of events which are said to constitute the expropriation, and secondly, the final act or omission which crystallizes the taking, or in other words, the measure that becomes the ‘final straw’. This will determine the date of the taking.
6.02 The notion of a composite act as sufficient to constitute a wrongful act engaging the international responsibility of a State is recognized as a principle in customary international law, as codified in the International Law Commission Articles on State Responsibility (ILC Articles). Article 15 (breach consisting of a composite act) provides as follows:
The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful, occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.
The accompanying Commentary defines the time at which a composite act ‘occurs’ as the time at which the last action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act, without it necessarily having to be the last of the series.1
6.03 In Azurix Corp. v. Argentina, the tribunal observed that in a case of direct expropriation, the moment when expropriation has occurred can usually be established without difficulty, whereas this is more difficult in the case of indirect or ‘creeping’ expropriation:
In a case of direct expropriation, the moment when expropriation has occurred can usually be established without difficulty. In the case where indirect or ‘creeping’ expropriation has taken place or, as the Santa Elena tribunal put it, ‘the date on which the governmental “interference” has deprived the owner of his rights or has made those rights practically useless’, it will be much more difficult for the tribunal to establish the exact time of the expropriation.
The tribunal addressed the argument sometimes put that applying this formula would lead to an inequitable situation whereby the investment’s value would be assessed at the time when the cumulative actions of the State would have led to a dramatic devaluation of the investment. It considered that such a view ‘does not take into account that, in assessing fair market value, a tribunal would establish that value in a hypothetical context where (p. 143) the State would not have resorted to such manoeuvres but would have fully respected the provisions of the treaty and the contract concerned’. The tribunal adopted a valuation date where the State’s ‘breaches of the BIT had reached a watershed’.2
6.04 Some well-known cases of the Iran–US Tribunal are cases of creeping expropriation. The tribunal considered in some detail issues such as which measures constituted the expropriation and the date of taking. These cases are often relied on by parties in investment treaty disputes.
6.05 In Phelps Dodge Corp. v. Iran,3 the Iran–US Tribunal held that there had been a ‘progressive erosion’ during the years 1979 and 1980 of the claimant’s ability to exercise its ownership rights in SICAB,4 an Iranian company established by the claimant along with other investors for the purpose of manufacturing and selling various wire and cable products in Iran.
6.06 By July 1978 construction of the SICAB factory was complete and by December 1979 most (although not all) of the planned equipment was on site and installed. Following the Iranian revolution in 1978–79, the claimant’s expatriate workers left Iran. In April 1979, the claimant was allegedly informed by representatives of SICAB that a workers’ committee had been established in the plant and had assumed virtual control. In June 1979, two banks which had invested in SICAB were nationalized and the claimant was informed that the stock owned by several Iranian shareholders had been nationalized and transferred to the Foundation of the Oppressed pursuant to the 1964 law ‘On the Protection of Industries and Prevention of Stoppage of Factories in the Country’. By the summer of 1979 Iran had become the majority shareholder of SICAB.
6.07 On 27 October 1980, the Iranian Council of the Protection of Industries, a governmental body, decided to order the transfer of SICAB’s management to the Bank of Industry and Mine (BIM) and the Organisation of National Industries (ONI), both agencies of the government. The BIM accelerated the demand for repayment of loans made to SICAB and on 6 November 1980 obtained a writ of execution against SICAB. On 15 November 1980, the Council for the Protection of Industries ordered, by decree, the transfer of management of the SICAB factory to the BIM and the ONI. Since that date, the factory had been operated by managers appointed by the government agencies, no meetings of SICAB’s board of directors or shareholders were held, and the claimant had received no information of the business activities or financial affairs of SICAB.5
6.08 The tribunal held that, as of 15 November 1980, control of the SICAB factory had been taken by Iran thereby depriving the claimant of virtually all of the value of its property rights in SICAB. This deprivation had lasted for five years and it was clear to the tribunal that it would continue indefinitely. The tribunal applied the test in Tippetts (‘the owner was deprived of fundamental rights of ownership and it appears that the rights are not merely ephemeral’) in finding there had been an unlawful expropriation.6
(p. 144) 6.09 In Amoco International Finance Corp. v. Iran,7 the Iran–US Tribunal held that the claimant’s 50 per cent interest in a joint venture company, Khemco, established for the building and operating of a plant for the production of sulphur and natural gas had been lawfully expropriated. The Khemco Agreement, concluded between Amoco and the National Petroleum Company (NPC) on 12 July 1966, established a mechanism for processing gas from four oil fields in the Persian Gulf and selling various associated chemicals. At the core of the Khemco Agreement was the establishment of Khemco, jointly owned by Amoco and the NPC. Amoco contended that, following the Iranian revolution, Iran took measures to effectively exclude it from all of Khemco’s operations. Subsequently, on 8 January 1980, the Islamic Republic of Iran promulgated the Single Act Concerning the Nationalisation of the Oil Industry of Iran (the Single Article Act) which stated that all oil agreements considered by the Minister of Oil to be contrary to the nationalization of the Iranian oil industry Act shall be annulled. On 24 December 1980, Iran’s Minister of Petroleum served notice on Amoco that the Khemco Agreement was null and void by a declaration of the Special Commission established in accordance with the provisions of the Single Article Act.
6.10 The majority tribunal found that the final act of the process by which the expropriation took place, which began in April 1979, was the declaration by the Special Commission, notified on 24 December 1980.8 However, the tribunal considered that the date to be considered for the valuation of compensation was the date at which the measures definitively took effect, i.e. 31 July 1979, when Iran caused NPC, the National Iranian Oil Company (NIOC), and the managing director of Khemco to act contrary to the position taken by the board of directors of Khemco thus practically depriving Amoco of its rights in the management of Khemco.9
6.11 In a Concurring Opinion, Judge Brower noted that the majority tribunal fixed the date of expropriation a year and a half after the date chosen for valuation of the expropriated interest. Judge Brower opined that by regarding the date of the last act in the expropriation process as the date of taking, the award escaped the necessity of holding the respondent’s actions unlawful. This was because placing the date of the taking after the adoption of the Single Article Act allowed the tribunal to consider that the compensation requirement for the expropriation had been satisfied. On the other hand, had the tribunal regarded the date of the taking as the date of the first definitive interference, as opposed to the last act, then there would have been no escaping a conclusion that the respondent had acted unlawfully.10
6.12 In Phillips Petroleum Company v. Iran,11 another case of creeping expropriation involving the Single Article Act, the Iran–US tribunal considered the date of taking to be the date of termination of the contract at issue. In this case, a US company brought a claim for compensation in the sum of USD 162 million for the alleged expropriation of contractual rights stemming from a Joint Structure Agreement (JSA) entered into with the NIOC for (p. 145) the exploration of four petroleum blocks in the Persian Gulf. The tribunal determined that the claimant’s property interest remained intact after the Iranian revolution and consisted principally of the contractual right to share in the oil produced from the JSA operations and shareholder rights to participate in the management of the JSA operations through IMINOCO, a non-profit company.12
6.13 The tribunal found that the first concrete actions taken concerning the claimant’s JSA rights followed resumption of oil production in March 1979 when the NIOC unilaterally set the petroleum rates at levels significantly below those prevailing prior to the revolution. Thereafter, all the petroleum in the fields was lifted by NIOC and the claimant was refused permission to lift petroleum. The tribunal noted that no compensatory payment was made for the claimant’s share, even though this was contemplated in such circumstances by the JSA and NIOC only provided petroleum on the basis of a separate sales contract, despite a JSA provision that petroleum was ‘owned at the well head’ in 50/50 shares.
6.14 The tribunal considered that the second set of actions affecting the claimant’s rights began in May 1979 when the Managing Director of the NIOC appointed a seven-person committee to supervise and execute the affairs of the affiliated companies. The NIOC later dismissed the Managing Director appointed by the Second Party to the JSA (which included the claimants), a right reserved under the JSA, and vested authority in its own appointee. In September 1979, information regarding IMINOCO, principally production reports, ceased to be sent to the claimant. The third set of actions were aimed at termination of the JSA, which occurred in September 1979. The tribunal held that the state of affairs reached in the course of 1979 was confirmed during 1980 and thereafter by the promulgation of the Single Article Act and by written notification on 11 August 1980 informing the claimant that the Special Committee had declared the JSA null and void.13
6.15 The tribunal further found that although a government’s liability did not depend on proof that the expropriation was intentional, there seemed little doubt in this case that the new Islamic Republic of Iran intended to bring the JSA to an end and to place the NIOC fully in charge of all oil production and sales.14 The tribunal held that the effect of Iran’s actions was to totally exclude the claimant from its functions under the JSA: the claimants no longer participated in the joint operations of the fields, no longer received their share of the petroleum being produced, and were told by Iran that their agreement was terminated and nullified.15 The tribunal concluded that the claimant had been deprived of its property by conduct attributable to the government of Iran which ‘rests on a series of concrete actions rather than any particular formal decree, as the formal acts merely ratified and legitimized the existing state of affairs’.16
6.16 The claimant contended that the date of taking was complete by 29 September 1979, the date of the meeting in which they were informed of the termination of the JSA. Iran, on other hand, contended that the date of notification of nullification of the JSA was the only date when the taking could be said to be complete.17 The tribunal noted that the Iran–US (p. 146) Tribunal had previously held that in circumstances where the taking is through a chain of events the taking will not necessarily be found to have occurred at the time of either the first or the last such event, but when the interference has deprived the claimant of fundamental rights of ownership and when such deprivation is ‘not merely ephemeral’, or when it becomes an ‘irreversible deprivation’. Similarly, where the appointment of temporary managers ripened into a taking of title at a later date, the Tribunal has found that the earlier date should be used when ‘there is no reasonable prospect of return of control’.18
6.17 The tribunal concluded that the first and most important action against the claimant’s property rights was the refusal to permit the claimant from taking its liftings of petroleum under the JSA. The final formal ‘nullification’ in August 1980 only confirmed the state of affairs. Between these two dates, the tribunal considered an early date as appropriate.19 The tribunal decided on 29 September 1979, the date the claimant was informed that the JSA was terminated, as the date of expropriation.
6.18 Investment treaty tribunals have also recognized the concept of creeping expropriation. In Waste Management, Inc. v. Mexico (first arbitration),20 the tribunal held that it lacked jurisdiction to decide the claimant’s expropriation claim relating to its interests in a concession for the provision of waste disposal services in the Mexican city of Acapulco for reason that the claimant had not complied with the condition precedent of submitting its claim to arbitration (i.e. it had not waived its rights to initiate and continue in local court proceedings). In a Dissenting Opinion, the dissenting arbitrator considered that the claims advanced before the local courts were different to the claims in the NAFTA arbitration, which, in his view, were broader and on a distinct juridical plane. In a Dissenting Opinion, the arbitrator made some observations on the concept of ‘creeping expropriation’. He considered that a measure of nationalization may be expected to include a law or regulation or nationalization decree by which the property in question is confiscated but it could also be of the ‘creeping’ variety which would involve additional acts:
If a nationalization is of the ‘creeping’ variety, it will fall within the meaning of paragraph 1 of NAFTA Article 1110 (‘a measure tantamount to nationalization or expropriation of such an investment’), but will still require some additional act to be taken beyond the bald denial of payment or cancellation of the contract—an act such as, e.g., a review by a local court or tribunal and denial of the claim on inadequate grounds, refusal to permit access to judicial review, some other form of denial of justice in international law, or a governmental conspiracy to take over the concession.21
The dissenting arbitrator further stated that a ‘creeping expropriation’ is comprised of a number of elements, none of which could separately constitute the international wrong. Rather, a ‘creeping expropriation’ must be more than the mere sum of its parts:
Not only did they [the local proceedings] involve numerous additional elements; they also proceed on a distinct and separate juridical plane, since a ‘creeping expropriation’ is comprised of a number of elements, none of which can—separately—constitute the international (p. 147) wrong. These constituent elements include non-payment, non-reimbursement, cancellation, denial of judicial access, actual practice to exclude, non-conforming treatment, inconsistent legal blocks, and so forth. The ‘measure’ at issue is the expropriation itself; it is not merely a sub-component part of expropriation.
A nationalization or expropriation—in particular a ‘creeping expropriation’ comprised of numerous components—must logically be more than the mere sum of its parts.22
6.19 In Compañía del Desarrollo de Santa Elena SA v. Costa Rica,23 the government of Costa Rica issued an expropriation decree on 5 May 1978 for the claimant’s property located in the Costa Rica’s Guanacaste Province. In the twenty-two years that passed since the expropriation decree and the commencement of the arbitration in 1995, the parties had been involved in legal proceedings before the courts of Costa Rica. The sole issue in the arbitration was the amount of compensation owed by Costa Rica.24 Specifically, the parties differed with respect to the date on which the property was expropriated and as of which date its fair market value was to be assessed, and the value of the property on that date.25
6.20 In deciding the issue, the tribunal considered that a taking of property can be indirect and by way of ‘creeping expropriation’. The tribunal defined ‘creeping expropriation’ as a series of measures or steps which eventually amount to a taking:
As is well known, there is a wide spectrum of measures that a state may take in asserting control over property, extending from limited regulation of its use to a complete and formal deprivation of the owner’s legal title. Likewise, the period of time involved the process of a taking of property may vary—from an immediate and comprehensive taking to one that only gradually and by small steps reaches a condition in which it can be said that the owner has truly lost all attributes of ownership. It is clear, however, that a measure or series of measures can still eventually amount to a taking, though the individual steps in the process do not formally purport to amount to a taking or to a transfer of title. What has to be identified is the extent to which the measure taken have deprived the owner of the normal control of this property. A decree which heralds a process of administrative and judicial consideration of the issue in a manner that effectively freezes or blights the possibility for the owner reasonably to exploit the economic potential of the property, can, if the process thus triggered is not carried out within a reasonable time, properly be identified as the actual act of taking.26
6.21 The tribunal determined that the expropriated property was to be evaluated as of the date on which the governmental interference deprived the owner of his rights or made those rights practically useless and that this was a matter of fact for it to assess in the light of the circumstances of the case.27 The tribunal found that, although the expropriation decree of 5 May 1978 was only the first step in a process transferring the property to the government, as of that date the practical and economic use of the property by the claimant was irretrievably lost and the claimant’s ownership of the property was effectively blighted or sterilized because the property could not thereafter be used for the development purposes for which it was originally acquired, nor did it possess any significant resale value.28 (p. 148) The tribunal awarded the claimant compensation as of 5 May 1978 in the sum of USD 4,150,000 but also awarded compound interest to reflect, at least in part, the additional sum that the compensation would have earned, had it, and the income generated by it, been reinvested each year at generally prevailing rates of interest.29 The total compensation awarded comprising principal and interest was USD 16 million.
6.22 In Generation Ukraine v. Ukraine,30 the claimant alleged that, after it had duly identified and achieved approval of the construction of an office building, the Ukrainian local authorities obstructed and interfered with the realization of the project over the following six years in a manner which amounted to an unlawful expropriation in violation of the US–Ukraine BIT signed on 4 March 1994. The alleged indirect expropriation was by three acts, described by the claimant as a ‘global expropriation’. The first act was the alleged failure of the Kiev City State Administration to produce revised land lease agreements with valid site drawings.31 The second act was a decision of Kiev City Council which allegedly unlawfully cancelled the claimant’s forty-nine-year land lease rights.32 The final act was the alleged expropriation of the claimant’s right to use the adjoining property as a construction staging area.33
6.23 The tribunal defined ‘creeping expropriation’ as a form of indirect expropriation with a distinct temporal quality whereby a series of acts over a period of time culminate in the expropriatory taking:
Creeping expropriation is a form of indirect expropriation with a distinctive temporal quality in the sense that it encapsulates the situation whereby a series of acts attributable to the State over a period of time culminate in the expropriatory taking of such property. The case of German Interests in Polish Upper Silesia is one of many examples of an indirect expropriation without a ‘creeping’ element—the seizure of a factory and its machinery by the Polish Government was held by the PCIJ to constitute an indirect taking of the patents and contracts belonging to the management company of the factory because they were so closely interrelated with the factory itself. But although international precedents on indirect expropriation are plentiful, it is difficult to find many cases that fall squarely into the more specific paradigm of creeping expropriation.34
6.24 The tribunal rejected the claimant’s expropriation claim, observing that the fact that an investment has become worthless does not mean that there is an act of expropriation as investment always entails risk.35 With respect to the first alleged act of expropriation, the tribunal found that the conduct of the Kiev City State Administration ‘did not come close to creating a persistent or irreparable obstacle to the Claimant’s use, enjoyment or disposal or its investment’.36 The tribunal further opined that the very reality of conduct tantamount to expropriation is doubtful in the absence of a reasonable and not necessarily exhaustive, effort by the investor to obtain correction. On the facts, the tribunal found that (p. 149) the claimant had not attempted to compel the Kiev City State Administration to rectify the alleged omissions in its administrative management of the project by instituting proceedings in the Ukrainian courts.37 The tribunal also rejected the claimant’s second alleged act of expropriation finding that the decision of the Kiev City Council had no legal effect on the claimant’s rights under the lease agreements because the decision went beyond the competence of the Kiev City Council and therefore, as agreed by the parties, the lease agreement remained binding and valid. The tribunal rejected the claimant’s third alleged act of expropriation in the absence of any proof that the lessee of the adjoining property consented to the claimant’s use of the land.38
6.25 In Rumeli Telekom AS & Telsim Mobil Telekomikasyon Hizmetleri AS v. Kazakhstan,39 the tribunal held that the claimants’ shareholding in Kar-Tel, a joint venture mobile telecommunications service company in Kazakhstan, had been expropriated by way of creeping expropriation in violation of the expropriation provision in the Kazakhstan–Turkey BIT signed on 1 May 1992. The tribunal found that the expropriation was instigated by the decision of the State on 21 February 2002 acting through the Investment Committee to terminate an investment contract concluded in 1999 between Kar-Tel and the Investment Committee, and culminated in a court process initiated by another shareholder of Kar-Tel, Telecom Invest, for the compulsory redemption of the claimants’ participation in Kar-Tel and an injunction to freeze the assets of Kar-Tel. The tribunal was in no doubt that the court process which resulted in the expropriation of the claimants’ shares was brought about through improper collusion between the State, acting through the Investment Committee, and Telcom Invest.40
6.26 The tribunal opined that the moment at which an expropriation takes place is not to be determined by any principle of international law but is a question of fact to be determined by the tribunal in the particular circumstances of the case—in some cases the moment of expropriation may be clearly established by a single expropriatory act whilst in other cases, such as the case at hand, the expropriation may be gradual or ‘creeping’, or it may be indirect rather than direct, so that to determine the moment of expropriation may be a matter of judgment rather than of direct and clear evidence.41
6.27 The tribunal considered that, given both the BIT and the Kazakhstan Foreign Investment Law referred in similar language to the moment when the expropriation became known to the investor, it may legitimately have regard to the question whether any initial expropriatory act was known to be irrevocable, or whether there remained any possibility that it might be reversed.42 The tribunal concluded that the date of taking was the unappealable decision of the Presidium of the Supreme Court on 30 October 2003 ordering the compulsory redemption of the claimants’ shares in Kar-Tel.43 The tribunal awarded the claimants USD 125 million in compensation, plus interest.
(p. 150) 6.28 In Telenor Mobile Communications AS v. Hungary,44 the tribunal observed that expropriation can take various forms including direct and indirect expropriation, as well as ‘creeping expropriation’ involving a series of acts over a period of time which, taken together, produce the effects of an expropriation:
Expropriation can take various forms. Direct expropriation involves the seizure of the investor’s property. But expropriation may also be indirect, as where, without the taking of property, the measures of which complaint is made substantially deprive the investment of economic value. Moreover, it is not necessary to show a single act or ground of acts committed at one time. As stated earlier, there may be ‘creeping’ expropriation involving a series of acts over a period of time none of which is itself or sufficient gravity to constitute an expropriatory act but all of which taken together produce the effects of expropriation. Phrases such as ‘equivalent to expropriation’ and ‘tantamount to expropriation’ do not expand the concept of expropriation and are usually taken to indicate that the BIT covers indirect as well as direct expropriation, thus looking at the substance of the measures in question rather than the label attached to them by government, and the same is true of ‘measures having similar effect’ …45
6.29 In Siemens AG v. Argentina,46 the tribunal defined ‘creeping expropriation’ as a process or steps which eventually has the effect of an expropriation. The last step in a creeping expropriation is ‘the straw that breaks the camel’s back’:
By definition, creeping expropriation refers to a process, to steps that eventually have the effect of an expropriation. If the process stops before it reaches that point, then expropriation would not occur. This does not necessarily mean that no adverse effects would have occurred. Obviously, each step must have an adverse effect but by itself may not be significant or considered an illegal act. The last step in a creeping expropriation that tilts the balance is similar to the straw that breaks the camel’s back. The preceding straws may not have had a perceptible effect but are part of the process that led to the break.47
The tribunal considered that this would constitute a composite act within the meaning of ILC Article 15.48
6.30 The tribunal held that the claimant’s investment in an integral service for the implementation of an immigration control, personal identification, and electoral information system was unlawfully expropriated in violation of the expropriation provision in the German–Argentina BIT signed on 9 July 1991. The contract for the provision of the system was awarded to the claimant by Decree No. 199/98. The tribunal determined that a series of measures taken by Argentina stood as part of a gradual process which, with the issuance of Decree 669/01 terminating the contract under the terms of the 2000 Economic-Financial Emergency Law (which the tribunal found to be a permanent measure), culminated in the expropriation of the claimant’s investment.49 The tribunal awarded the claimant over USD 208 million in compensation, plus interest.
(p. 151) 6.31 In Spyridon Roussalis v. Romania,50 the tribunal defined ‘creeping’ or ‘constructive’ expropriation as a series of acts and/or omissions which, in sum, result in the deprivation of property rights:
Expropriation may occur in the absence of a single decisive act that implies a taking of property. It could result from a series of acts and/or omissions that, in sum, result in a deprivation of property rights. This is frequently characterized as a ‘creeping’ or ‘constructive’ expropriation. In the Biloune case the arbitration panel found that a series of governmental acts and omissions which “effectively prevented” an investor from pursuing his investment project constituted a ‘constructive expropriation.’ Each of these actions, viewed in isolation, may not have constituted expropriation. But the sum of them caused an ‘irreparable cessation of work on the project’ (Biloune and Marine Drive Complex Ltd. v. Ghana Investments Centre and the Government of Ghana, UNCITRAL ad hoc Tribunal, Award on Jurisdiction and Liability of October 27, 1989, 95 ILR 183, 209).51
6.32 The next chapters consider contractual expropriation, regulatory expropriation, and judicial expropriation—all forms of indirect expropriation which, depending on the facts, may also constitute creeping expropriation where they are part of a series of acts and omissions which, in their totality, amount to an expropriation. For this reason, these chapters include more definitions of creeping expropriation.