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Developments in Indirect Expropriation Case Law in ICSID Transnational Arbitration

Developments in Indirect Expropriation Case Law in ICSID Transnational Arbitration I. INTRODUCTION Awards by International Centre for Settlement of Investment Disputes (ICSID) tribunals in cases where indirect expropriation has been alleged have been characterized as highlighting a distinct line of thinking,� and the international case law on indirect expropriation has been characterized as in disarray.2 There are several reasons which can, if not justify, at least illuminate and explain the divergent interpretative approach taken by 1(-SID tribunals. This is partially due to the multiple and heterogeneous forms of legal instruments on which the ICSID tribunals ground their jurisdiction and in which there is no definition of an indirect expropriation,.3 The ICSID Tribunal in Feldman was confronted with this question when interpreting Article 1110(1) of the North American Free Trade Agreement (NAFTA)'* and stated that "the Article 1110 language is of such generality as to be difficult to apply in specific cases".5 Furthermore, the difference in composition of the ICSID tribunals seems to be a problem for establishing a jurisprudence constant. ó The determination of an indirect expropriation is not an easy task and demands a casuistic approach.7 In accordance with Article 53(1) of the ICSID Convention, the awards shall be binding only on the parties to the dispute.8 http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Investment and Trade Brill

Developments in Indirect Expropriation Case Law in ICSID Transnational Arbitration

Journal of World Investment and Trade , Volume 6 (3): 25 – Jan 1, 2005
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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1660-7112
eISSN
2211-9000
DOI
10.1163/221190005X00163
Publisher site
See Article on Publisher Site

Abstract

I. INTRODUCTION Awards by International Centre for Settlement of Investment Disputes (ICSID) tribunals in cases where indirect expropriation has been alleged have been characterized as highlighting a distinct line of thinking,� and the international case law on indirect expropriation has been characterized as in disarray.2 There are several reasons which can, if not justify, at least illuminate and explain the divergent interpretative approach taken by 1(-SID tribunals. This is partially due to the multiple and heterogeneous forms of legal instruments on which the ICSID tribunals ground their jurisdiction and in which there is no definition of an indirect expropriation,.3 The ICSID Tribunal in Feldman was confronted with this question when interpreting Article 1110(1) of the North American Free Trade Agreement (NAFTA)'* and stated that "the Article 1110 language is of such generality as to be difficult to apply in specific cases".5 Furthermore, the difference in composition of the ICSID tribunals seems to be a problem for establishing a jurisprudence constant. ó The determination of an indirect expropriation is not an easy task and demands a casuistic approach.7 In accordance with Article 53(1) of the ICSID Convention, the awards shall be binding only on the parties to the dispute.8

Journal

Journal of World Investment and Trade – Brill

Published: Jan 1, 2005

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