This article is an extract from The Investment Treaty Arbitration Review - Edition 6. Click here for the full guide.
i Expropriation in general
Definition and public international law
Expropriation is generally understood as the host state's taking of property belonging to a foreign investor. Expropriation itself is not illegal per se but rather deemed as an exercise of the state's fundamental right of territorial sovereignty,2 while conditions of expropriation are imposed by a variety of sources including domestic laws, investment agreements, as well as customary international law.
Expropriation under international investment law is in line with public international law, because an unlawful taking of property belonging to a foreign investor triggers a state's international responsibility under public international law,3 provided that the taking is attributable to the state.4
The term 'expropriation/expropriate' under international investment agreements (IIAs) is often used alongside the term 'nationalisation/nationalise'.5 Some IIAs also adopt the terms 'dispossession',6 'requisition'7 or 'depriving'8. While terms of expression are slightly different, almost all IIAs contain an expropriation provision of which the main idea is to provide guarantees for foreign investors against unlawful taking of their investments, and the variety of the used terms hints at a sense of flexibility as to the application of the expropriation provision.9
ii The object of expropriation
Expropriation provisions in IIAs refer to 'investment' as the object of the expropriation,10 and the scope of the object of the expropriation thus depends on the definition of the 'investment' in the relevant IIA.11
iii Types of expropriation
Based on the way of an act adopted by the host state, expropriation can be classified as direct or indirect expropriation. Meanwhile, depending on the legitimacy of the action, expropriation can be divided into lawful or unlawful expropriation.
Direct or indirect expropriation
Direct expropriation mainly refers to the host state's direct takings12 or forcible appropriation13 of the investment of the individual investor, alongside which a transfer or annulment of legal title occurs (for details, see Section II). Indirect expropriation, on the other hand, may leave the investor's legal title to and physical control over its investment unaffected while the investment is deprived by the host state of its economic use. There are various forms of indirect expropriation, as recognised by investment tribunals; for instance, creeping expropriation, regulatory expropriation and the debated judicial expropriation (for details, see Section III). Direct expropriation and indirect expropriation are invariably prohibited by IIAs, unless the conditions for a lawful expropriation are met.
Lawful or unlawful expropriation
As mentioned above, expropriation itself is not unlawful under public international laws. It is generally accepted that a lawful expropriation must fulfil the following criteria: (1) the measure was adopted for a public purpose/interest; (2) in a non-discriminatory manner; (3) in accordance with due process of law; and (4) against the payment of compensation.14 The vast majority of IIAs also adopt the above-mentioned requirements in defining a lawful expropriation.15
As to the consequence of the lawful and unlawful expropriation, the most significant difference is the standard of compensation which is being discussed specifically in the chapter 'Compensation for Expropriation' by Konstantin Christie and Rodica Turtoi herein. In short, the mainstream practices are in line with customary international law of state's responsibility for international wrongful act: the compensation of an unlawful expropriation is subject to full reparation;16 while the compensation for a lawful expropriation normally is limited to the market value at the time of the taking.17
iv Applicable law
The predominant applicable law dealing with the dispute of expropriation between the investor and the host state is the investment treaty in question. As to the role of domestic law in an expropriation dispute, it is generally recognised that the domestic law deals with the individual investor's property rights (i.e., the 'investment').18 Public international law, on the other hand, does not create property rights but rather provides protections to such rights created by the municipal law.19 In short, domestic law decides the existence of the object of the expropriation, and the public international law, including the investment treaty in question, decides the lawfulness of the taking.
Moreover, when assessing the legitimacy of the measure taken by the state, as elaborated upon in Section I.iii, the expropriation provision may refer to domestic laws or legal procedures of the host state when setting the standard of due process requirement. However, one should note that the measure's legality under domestic law is not necessarily sufficient for the state to justify its action under international law.20
ii Direct expropriation
Direct expropriation is a measure taken by a host state that directly removes the investor's legal title over the investment or physically seizes the property.21 It was pointed out by the tribunal in Telenor Mobile v. Hungary that 'Nowadays direct expropriation is the exception rather than the rule, as States prefer to avoid opprobrium and the loss of confidence of prospective investors by more oblique means'.22 Scholars also agree with this opinion.23
ii IIA practice
Most IIAs do not explain the meaning of expropriation, whether direct or indirect, while some new generation investment treaties change the situation by attempting to provide a definition for expropriation. For instance, in its Annex B, the US–Uruguay BIT defines 'direct expropriation' as 'where an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure',24 with both parties' recognition that such definition falls within their understanding of 'customary international law'.25 The term 'formal transfer of title or outright seizure' is also adopted in a series of investment agreements entered into by the European Union (EU) with other countries.26
Although ways of expressions differ in different IIAs, direct expropriation is invariably prohibited, unless the conditions for a lawful expropriation are met (see Section I.iii).
Transfer of title in favour of the host state is the typical scenario of direct expropriation.27 The Tribunal in Sempra v. Argentina,28 for example, stated that 'there can[not] be a direct form of expropriation if at least some essential component of the property right has not been transferred to a different beneficiary, in particular the State'.29 The tribunal found no direct expropriation existed because while the rational management was affected because of the government's policies, the investors and the licensee companies were still the rightful owners of the companies and business.30
Although an actual transfer of title might be the most distinguished criterion for direct expropriation, some tribunals found that other forms of direct expropriation may exist.
For instance, Quiborax v. Bolivia deals with claims arising out of the revocation via a Presidential Decree of 11 mining concessions allegedly owned by the investor. Referring to the previously decided case of another tribunal in Burlington v. Ecuador, the tribunal in Quiborax held that a direct expropriation must entail a permanent deprivation of property that amounts to a forcible taking or transfer to the state while it cannot be justified by the doctrine of police powers.31 Consequently, the tribunal in Quiborax found that the Decree revoking the mining concessions constituted a direct expropriation because it had the effect of physically transferring the title of the concessions to the state and involved permanent nature,32 and the measure in question cannot be justified as an exercise of state's police powers because it failed to comply with the due process.33 Another example is South American Silver v. Bolivia. The tribunal, in that case, found that the reversion of the mining concession held by a company that was indirectly owned by the investor to the original ownership of the Bolivian government constituted a direct expropriation.34
As to the relevant time point, direct expropriation takes place at the time of the transfer or annulment of the legal title.
iii Indirect expropriation
Though international law does not lay down definitions for indirect expropriation, it is generally accepted that in indirect expropriation, a substantial deprivation of the value of an investment amounting to effective or de facto taking of property attributable to the state has taken place, so that the investor has lost economical use and enjoyment of its investments.35 Indirect expropriation could be established even if the state has not effected formal transfer of title and physical control to the investment, and even if the state has not obtained any economic benefit.36
Though investment treaties generally do not further divide indirect expropriations into subcategories, some forms have been considered and identified by investment tribunals.
One such form is regulatory expropriation, which refers to cases where host states' legislative and regulatory measures, rather than judicial misconduct, reduce the benefits of investment.37 The United Nations Conference on Trade and Development (UNCTAD) defines regulatory expropriation as takings of property that fall within the police powers of a state, or otherwise arise from state measures like those pertaining to the regulation of the environment, health, morals, culture or economy of a host country.38 Considerable portions of indirect expropriation cases could fall under the scope of regulatory expropriation, and indirect expropriation is sometimes referred to as a 'regulatory taking'.
Another subcategory or form of indirect expropriation identified by investment tribunals concerns the 'creeping expropriation', which is described as a situation 'whereby a series of acts attributable to the State over a period of time culminate in the expropriatory taking of such property'.39 In creeping expropriation, each of a series of state acts taken within a limited time span may not be significant or considered as an expropriation, but are regarded as constituent parts of the unified treatment of the investor or investment.40
ii IIA practice
Most investment treaties distinguish between direct and indirect expropriation, adopting similar terms such as 'measures having effect equivalent to nationalisation or expropriation'41 or 'measure tantamount to nationalisation or expropriation' for indirect expropriation.42 Some recent treaties employ more elaborated definitions of indirect expropriation; for instance, Article 12 of the Netherlands Model Investment Agreement (2019) defines indirect expropriation as 'a measure or a series of measures of a Contracting Party has an effect equivalent to direct expropriation, in that it substantially deprives the investor of the fundamental attributes of property in its investment, including the right to use, enjoy and dispose of its investment, without formal transfer of title or outright seizure'.43 Being brief or elaborated though, such definitions function far from being sufficient to establish whether an indirect expropriation have occurred.
The detailed formulations of indirect expropriation have been introduced in some investment treaties signed since 2000. This is to some extent because of the acknowledged need of safeguarding the state's right to regulate. For instance, the 2004 and 2012 US Model BITs lay down criterion for tribunals to conduct a case-by-case, fact-based inquiry that whether the state's measure, in a specific factual situation, constitutes indirect expropriation. These treaties normally set forth the following factors to consider when determining whether a state action constitutes an indirect expropriation: (1) the economic impact of the government action; (2) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and (3) the character of the government action. They also exempt certain regulatory measures from the scope of indirect expropriation, by providing that except in the rare circumstance, non-discriminatory measures of a state that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations.44
Some most recent treaties, for instance the EU investment agreements, have moved even further, adopting significant efforts carving out regulatory space while providing investment protection. The EU–Singapore Investment Protection Agreement (2018), for instance, explicitly provides that the mere fact that a party regulates in a manner that negatively affects an investment or interferes with an investor's expectations does not constitute a breach of the agreement.47
Investment tribunals have been called to rule on various measures in alleged indirect expropriations, including: tax measures,48 measures restricting import and export,49 measures regulating currency and tariffs,50 measures regulating environment and health,51 rules on licences52 and judicial conducts53. It is generally accepted that wide range of measures, be it legislative, regulatory, or even judicial, could be potentially capable to indirectly expropriate an investment.
Less agreed is the proper criterion and tests to determine whether a measure constitutes an indirect expropriation, in particular in cases where the instruments invoked stay silent on detailed formulations of indirect expropriation. A consistent line of jurisprudence has held that for an indirect expropriation to be found, the primary question (or even the sole issue) to consider is the effects of the measure on the economic value or the substantial property interests of the investor.54 Further, the measures adopted by the host state must have effected a 'substantial deprivation' of 'the use of reasonably expected economic benefit of the investment'.55 Following the above tests, a diminution of the investment's economic value, for instance, a loss of some of the anticipated returns on investments in shares, or a mere loss in value of an investment, which is not the result of an interference with the control or use of the investment is not sufficient to establish an indirect expropriation.56 The tests of 'sole effect' and 'substantial deprivation' have also been adopted by investment tribunals in very recent cases, holding that an indirect expropriation arises when the investment lost all significant economic value with the state measure's interference.57
However, some tribunals, echoing trends to safeguard host states' right to regulate and concurrent with the developments of IIAs, have incorporated extra elements aside from the 'substantial deprivation' and applying more comprehensive tests for indirect expropriation; for instance, (1) a foreign investor is deprived of the control over the investment; (2) deprivation must be permanent; (3) the measure interferes with the investor's reasonable expectations; (4) the measure must not be justified by the police powers doctrine; and (5) the state's action is obviously disproportionate to the need being addressed.58 Though the above elements and tests are combined on a case-by-case basis, 'substantial deprivation' is always considered a primary factor.
Following the above investor–state dispute settlement development, investment tribunals have come up with two doctrines when considering whether a regulatory measure constitutes an indirect expropriation: the sole-effects doctrine, which requires that reference be made only to the effect of the measure on the property; and the police powers doctrine, which requires global assessment of the measure's purpose, context and nature.59 Under the latter doctrine, indicators of the expropriatory nature of a regulatory measure may include lack of genuine public purpose, of due process, of proportionality, and of fair and equitable treatment; discrimination, abuse of rights and direct benefit to the state.60