International Investment Law and Soft Law

International Investment Law and Soft Law

Edited by Andrea K. Bjorklund and August Reinisch

This important book examines the development of soft law instruments in international investment law and the feasibility of a ‘codification’ of the present state of this field of international economic law.

Chapter 10: Is Expropriation Ripe for Codification? The Example of the Non-Discrimination Requirement for Lawful Expropriations

August Reinisch

Subjects: law - academic, international economic law, trade law, international investment law


10. Is expropriation ripe for codification? The example of the non-discrimination requirement for lawful expropriations August Reinisch* I. INTRODUCTION Any attempt to ‘codify’ or to ‘distill’ principles concerning the rules on expropriation usually contained in International Investment Agreements (IIAs) faces a number of challenges. On the one hand, the exact wording of the rules on expropriation, in particular the scope of the notion of indirect expropriation, the legality requirements and the applicable standard of compensation, may differ from one investment agreement to the other. On the other hand, the specific interpretation given to such rules may depend upon the individual investment tribunal deciding a specific dispute. In recent investment arbitration a considerable number of tribunals have addressed expropriation claims,1 though only a few have come to the conclusion that expropriation rules were actually infringed. * The author wishes to thank Andrea K Bjorklund for her comments on an earlier draft of this contribution. 1 ADC Affiliate Limited and ADC & ADMC Management Limited v Republic of Hungary, Award of 2 October 2006, ICSID Case No ARB/03/16, paras 368, 423–45; Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v Mexico, Award of 21 November 2007, ICSID Case No ARB(AF)/04/5, paras 228–52; Azinian, Davitian, & Baca v Mexico, Award of 1 November 1999, ICSID Case No ARB(AF)/97/2, paras 85–124; Azurix v Argentine Republic, Award of 14 July 2006, ICSID Case No ARB/01/12, paras 308–23; Bayindir Insaat Turizm Ticaret Ve...

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