Set 1 Flashcards
(30 cards)
What is direct expropriation in international law?
Direct expropriation occurs when a state overtly nationalises or confiscates foreign-owned property, formally transferring title or control.
What is indirect expropriation?
Indirect expropriation involves state measures that do not transfer title but deprive the investor of the use, value, or control of their investment.
Which case recognised indirect expropriation due to denial of permits in environmental regulation?
Metalclad v. Mexico (2000).
What case applied the effect-based approach to determine indirect expropriation?
Tecmed v. Mexico (2003).
What role does the Hull Formula play in expropriation law?
It provides that expropriation must be for public purpose, non-discriminatory, and accompanied by ‘prompt, adequate, and effective’ compensation.
How does Santa Elena v. Costa Rica (2000) distinguish between lawful and unlawful expropriation?
It held that even expropriations for a legitimate public purpose require compensation under international law.
What does the proportionality test evaluate in expropriation cases?
It assesses whether the impact on the investor is proportionate to the public interest pursued by the state.
What principle allows states to regulate without compensating investors?
The police powers doctrine (e.g., Methanex v. USA, 2005).
How does Feldman v. Mexico (2002) frame discriminatory taxation as expropriation?
It held that discriminatory measures may constitute expropriation if they substantially impair the investment.
In what way is the effect of a measure more important than intent in expropriation?
Tribunals often focus on economic impact over regulatory purpose when assessing indirect expropriation.
Why is sovereignty relevant in expropriation disputes?
Sovereignty justifies regulation in the public interest but does not nullify the obligation to compensate for expropriation.
What case reinforced that compensation is required even if expropriation serves an environmental goal?
Santa Elena v. Costa Rica (2000).
What is creeping expropriation?
A series of state actions over time that cumulatively deprive an investor of the value or use of their investment.
Which case established the cumulative acts doctrine in creeping expropriation?
Phillips Petroleum v. Iran (1989).
What is the main evidentiary challenge in creeping expropriation claims?
Proving that a series of seemingly lawful measures collectively caused substantial deprivation.
How does El Paso v. Argentina (2011) interpret creeping expropriation?
It found that regulatory inconsistencies and reversals undermined the investor’s ability to operate profitably, constituting creeping expropriation.
How is legitimate expectation relevant to creeping expropriation?
Investors claim that gradual breaches of initial commitments erode expected returns and rights.
How do tribunals distinguish creeping expropriation from regulatory change?
By assessing whether measures were arbitrary, disproportionate, and led to substantial deprivation.
What was the outcome of Total v. Argentina (2010) regarding creeping expropriation?
The tribunal accepted that a sequence of measures breached FET but not the threshold of expropriation.
Why is intent difficult to establish in creeping expropriation?
Because no single measure appears to target the investor; it is the cumulative effect that matters.
What are the four key dimensions of jurisdiction in investment arbitration?
Ratione personae, ratione materiae, ratione temporis, and ratione voluntatis.
What is the legal source of ICSID jurisdiction?
Article 25 of the ICSID Convention (1965).
What test did Salini v. Morocco (2001) establish?
The Salini test: contribution, duration, risk, and contribution to development.
What does Phoenix Action v. Czech Republic (2009) say about good faith and jurisdiction?
It held that investments made in bad faith or solely to gain jurisdiction are not protected.
