Ratner: Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction

Steven R. Ratner (Univ. of Michigan - Law) has posted Compensation for Expropriations in a World of Investment Treaties: Beyond the Lawful/Unlawful Distinction (American Journal of International Law, forthcoming). Here's the abstract:

When a state expropriates a foreign investment in violation of a bilateral or other treaty on investment protection and a foreign investor sues, where should a tribunal look for the standard of compensation -- to the amount specified in the treaty, to an external standard for violations of internationally law generally, or elsewhere? Investor-state tribunals have offered wildly different answers to this question, trapped in a paradigm set by the Permanent Court of International Justice ninety years ago that distinguishes between so-called lawful and unlawful expropriations. This article evaluates and criticizes the caselaw of tribunals and proposes a new framework for compensation grounded in five key purposes of a remedy in the context of contemporary investor-state relations. It also clarifies the economic and legal significance of valuing expropriated investments using information available at the date of expropriation as opposed to the date of the award. The article proposes that, instead of the current lawful/unlawful distinction, compensation take account of specific aspects of the expropriatory act, including whether the state's failure to pay was based on a bona fide disagreement with the investor and whether the state violated the procedural criteria spelled out in an investment treaty. It concludes with a consideration of the implications of this approach for violations of other provisions of investment treaties.

Daza-Clark: International Investment Law and Water Resources Management

Ana Maria Daza-Clark (Univ. of Edinburgh - Law) has published International Investment Law and Water Resources Management: An Appraisal of Indirect Expropriation (Brill | Nijhoff 2017). Here's the abstract:

Hydrological variability, increasing competition for water, and the need for regulatory flexibility may increasingly compel governments to adopt measures with significant economic impact on foreign investment. In International Investment Law and Water Resources Management, Daza-Clark offers an appraisal of indirect expropriation, revisiting the well-known doctrine of the police power. Through the lens of international investment law, the author explores a framework that assesses the legitimate exercise of police power with particular attention to the special nature of water resources.

López Escarcena: Indirect Expropriation in International Law

Sebastián López Escarcena (Pontificia Universidad Católica de Chile - Law) has published Indirect Expropriation in International Law (Edward Elgar Publishing 2014). Here's the abstract:

When does a state measure become subject to compensation as an indirect expropriation under international law? The author examines claims of indirect takings from such fora as the Iran-United States Claims Tribunal, the European Court of Human Rights, and arbitral panels in investment treaty arbitrations.

Sebastián López Escarcena offers a comprehensive coverage of the history and main concepts of the international law of expropriation. The interaction between human rights conventions and investment treaties are analysed from a global perspective, providing the reader with a unique insight into expropriation at an international level. Within the course of his examination, the author illuminates important concepts of public law, from deprivation of property to payment of compensation, and from margin of appreciation to proportionality.

In examining in detail the case law of different international tribunals, this shrewd book formulates some insightful answers to the threshold question, and will be of great interest to decision-makers in investment treaty arbitrations, to legal practitioners, state officers and scholars in international investment law and international human rights law, and to anyone dealing with international and comparative law in general.