(Indirect) Expropriation as a Sovereign Act: A Case for Balance
摘要
This Chapter examines the evolving legal and political dynamics surrounding subsequent generations of expropriation provisions in international investment agreements (IIAs), highlighting the tension between states’ sovereign rights and the protection of foreign investors against expropriatory measures. It analyzes how modern expropriation provisions attempt to balance these interests by incorporating clearer and more specific provisions in an attempt to guide adjudicators. Qualitatively engaging with a broad selection of case law, the Chapter presents a new framework for the analysis of effects and police powers doctrines, situating their application within a so-called ‘effect-intent scale’. Based upon this framework, the Chapter concretely demonstrates inconsistencies stemming from varying emphases on the effects of state measures versus their intent or regulatory prerogatives, resulting in unpredictable outcomes for both states and investors. Drawing on case law and new-generation IIAs, the Chapter illustrates how states have responded to these challenges by adopting provisions aimed at safeguarding their legitimate, non-discriminatory regulatory measures. Examples from agreements such as the CPTPP, RCEP, and EU IIAs demonstrate a global trend toward greater clarity and recalibration of expropriation provisions, minimizing liability for actions taken in pursuit of public policy goals such as health and environmental protection. It argues that this global shift, driven by accumulated arbitral experience, has led to increased coherence and predictability in investment arbitration, although challenges remain, as evidenced by cases like Bear Creek v. Peru. The Chapter concludes by noting that the convergence of interests between capital-importing and exporting states creates a unique opportunity for collective recalibration of international investment law.