Expropriation

Abstract The chapter discusses the expropriation standard in international investment law, bringing into the analysis aspects that arbitrators have often overlooked or disregarded when resolving direct and indirect expropriation claims. Few topics have attracted the attention of international lawyers as much as expropriation. Decades of debate between academics and diplomats culminated in the signature of thousands of international investment treaties in the 1990s. However, neither treaty text nor investor–state dispute settlement practice has provided a precise formula to distinguish indirect expropriation from legitimate regulation, and arbitrators continue to grapple with calculating prompt, adequate, and effective compensation in actual cases. While revisiting the main issues involved in expropriation cases, such as compensation and indirect expropriation, this chapter argues that clear formulas will remain elusive because disputes about private property, particularly about the relationship between ownership and state authority, relate ultimately to societal values, having multiple and inter-temporal effects.