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Part III Substantive Rights, 8 Expropriation

From: International Investment Arbitration: Substantive Principles (2nd Edition)

Campbell McLachlan, Laurence Shore, Matthew Weiniger

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 25 March 2023

Compensation for lawful nationalisation — Creeping expropriation — Indirect expropriation — Regulatory expropriation (or regulatory taking) — NAFTA (North American Free Trade Agreement) — Compensation — Customary international law — Treaty provisions

Chapter 8 deals with the protection from the expropriation of an investor’s property. It places this important protection against the background of its historical development before considering the particular formulations now commonly found in the key investment treaties. It then examines, case by case, the circumstances in which arbitral tribunals have found State conduct to be expropriatory, analysing the degree of State interference required to constitute expropriation as well as the kinds of governmental measures that may constitute expropriation; the nature of the claimant’s rights that are capable of being expropriated; and the importance of the distinction between direct and indirect expropriation.

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