Indirect Expropriation: Conceptual Realignments?

Indirect Expropriation: Conceptual Realignments? 155 Indirect Expropriation: Conceptual Realignments? RUDOLF DOLZER and FELIX BLOCH* At a time when national policies concerning international economic relations are increasingly characterized by concepts aiming at structural adjustment, good gov- ernance and export-led growth, and when many countries Ž nd themselves in Ž erce competition for foreign direct investment, the era of straightforward formal expropriations of alien property seems to have come to an end. At the same time, however, the need for protecting certain public goods, be it in the areas of social cohesion or environmental protection, remains on the agenda of most, if not all, political actors. Against this backdrop, it does not seem unreasonable to assume that pressure on national governments – open or disguised – to protect domestic industries, the environment, or public health may encourage governments to regu- late foreign investment, in itself or as part of the general economy, so drastically that foreign investors may be inclined to raise claims of indirect expropriation. The precise deŽ nition of what constitutes an expropriation is thus likely to con- tinue to engender legal debates and disputes. This is even more so considering the growing number of bilateral investment treaties (“BITs”). Before turning to http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Law FORUM du droit international (continued in International Community Law Review) Brill

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Publisher
Brill
Copyright
© 2003 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1388-9036
eISSN
1571-8042
D.O.I.
10.1163/138890303322398350
Publisher site
See Article on Publisher Site

Abstract

155 Indirect Expropriation: Conceptual Realignments? RUDOLF DOLZER and FELIX BLOCH* At a time when national policies concerning international economic relations are increasingly characterized by concepts aiming at structural adjustment, good gov- ernance and export-led growth, and when many countries Ž nd themselves in Ž erce competition for foreign direct investment, the era of straightforward formal expropriations of alien property seems to have come to an end. At the same time, however, the need for protecting certain public goods, be it in the areas of social cohesion or environmental protection, remains on the agenda of most, if not all, political actors. Against this backdrop, it does not seem unreasonable to assume that pressure on national governments – open or disguised – to protect domestic industries, the environment, or public health may encourage governments to regu- late foreign investment, in itself or as part of the general economy, so drastically that foreign investors may be inclined to raise claims of indirect expropriation. The precise deŽ nition of what constitutes an expropriation is thus likely to con- tinue to engender legal debates and disputes. This is even more so considering the growing number of bilateral investment treaties (“BITs”). Before turning to

Journal

International Law FORUM du droit international (continued in International Community Law Review)Brill

Published: Jan 1, 2003

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