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Indirect Expropriation in the Field of Petroleum

Indirect Expropriation in the Field of... I. INTRODUCTION Looking beyond the issue of outright takings, one finds that under international law a taking of foreign investment may occur not only by a formal decree of nationalization or legislation designed to achieve that goal but also through other indirect means which may have the same effect as direct expropriation.' There are various strategies used by host States to effectuate what would amount to an expropriation, but without acknowledging it as such, in an attempt to avoid the stigma and international legal consequences of a direct, and therefore compensable, taking.2 Many policies requiring what used to be a formal and direct expropriation of tangible property are now being operated by such indirect strategies. Therefore, the focus of attention in international investment law is shifting from the simple identification of a government taking of tangible property to the new indirect means which may have the same effect as direct expropriation.3 State measures affecting foreign investment in an indirect manner pose a special difficulty from the standpoint of what would amount to an expropriation and how significant the measure must be to constitute a taking for which compensation should be paid. These questions have bedeviled governments, international tribunals http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Investment and Trade Brill

Indirect Expropriation in the Field of Petroleum

Journal of World Investment and Trade , Volume 5 (6): 30 – Jan 1, 2004

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1660-7112
eISSN
2211-9000
DOI
10.1163/221190004X00100
Publisher site
See Article on Publisher Site

Abstract

I. INTRODUCTION Looking beyond the issue of outright takings, one finds that under international law a taking of foreign investment may occur not only by a formal decree of nationalization or legislation designed to achieve that goal but also through other indirect means which may have the same effect as direct expropriation.' There are various strategies used by host States to effectuate what would amount to an expropriation, but without acknowledging it as such, in an attempt to avoid the stigma and international legal consequences of a direct, and therefore compensable, taking.2 Many policies requiring what used to be a formal and direct expropriation of tangible property are now being operated by such indirect strategies. Therefore, the focus of attention in international investment law is shifting from the simple identification of a government taking of tangible property to the new indirect means which may have the same effect as direct expropriation.3 State measures affecting foreign investment in an indirect manner pose a special difficulty from the standpoint of what would amount to an expropriation and how significant the measure must be to constitute a taking for which compensation should be paid. These questions have bedeviled governments, international tribunals

Journal

Journal of World Investment and TradeBrill

Published: Jan 1, 2004

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