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영어

This article explores the development of the international law on expropriation. The concept of expropriation under international law is difficult to determine. One factor that reinforces this difficulty is that the expropriation provisions in different treaties vary in specific wordings. However, there certainly are discernible substantive principles that penetrate through the expropriation provisions of international investment agreements. Under international law, the States have the right to expropriate properties within each of their jurisdictions, subject to certain conditions requiring that the States expropriate for public purposes, in non-discriminatory manners, on payment of compensations, and (though it is not as general as the foregoing three conditions) in accordance with due process of law. Having fulfilled these conditions, an expropriation would qualify as a lawful expropriation. The present-day discussion on unlawful expropriation mostly concerns indirect expropriation. As a concept distinct from direct expropriation, indirect expropriation is ‘deprivation of property through interference by a State in the use of that property or with the enjoyment of its benefits even where legal title to the property is not affected’.(Tippetts, Abbett, McCarthy, Stratton and TAMS-AFFA Consulting Engineers of Iran v. Iran) As indirect expropriation usually takes the form of regulatory measures of States which in many cases are not accompanied by compensation as required under international investment agreements, it would amount to unlawful expropriation. What draws a line between a legitimate regulation and an indirect expropriation is a contested issue and one of the factors that complicates the law on expropriation. Arbitral tribunals have employed criteria such as the degree of interference or the economic impact of the measures, its character or intent, and the legitimate expectations of the investor. Each of these criteria will be studied in this article, along with the concept of proportionality that operates to weigh and balance the criteria in a particular case.