Indirect Expropriation in International Law

Indirect Expropriation in International Law

Leuven Global Governance series

Sebastián López Escarcena

Sebastián López Escarcena offers a comprehensive coverage of the history and main concepts of the international law of expropriation. The interaction between human rights conventions and investment treaties are analysed from a global perspective, providing the reader with a unique insight into expropriation at an international level. Within the course of his examination, the author illuminates important concepts of public law, from deprivation of property to payment of compensation, and from margin of appreciation to proportionality.

Chapter 6: Takings in multilateral treaties

Sebastián López Escarcena

Subjects: law - academic, public international law


Different organisations have failed in their attempts to regulate the property of aliens in a multilateral treaty. The League of Nations and the ICC had a brief interest in the protection of foreign investment, during the first half of the 20th century. Before the decline of the NIEO, expropriation was highly debated at the UN General Assembly for at least two decades. In the 1960s, a failed multilateral treaty of the OECD played a leading role in the development of BITs, essential to what was later to become international investment law. In the 1990s, however, another unsuccessful attempt by the OECD to formulate a multilateral treaty on foreign investment ended up affecting this new area of law. The World Bank established in the 1960s and the 1980s two of the most important organisations in the history of international investment law: ICSID and MIGA. Additionally, it drafted a set of general guidelines for the treatment of aliens, which somehow filled the gap that had existed for a universal treaty regulating expropriation in international law. In the meantime, a couple of institutions in the USA issued non-binding instruments, tackling the question of foreign investment from a domestic point of view. A fair number of mostly plurilateral treaties currently include investment provisions among their articles, repeating the protection against expropriation found in BITs. As a consequence, these treaties do not openly adopt a clear effects or police-powers solution.

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