Requiem for Indirect Expropriation: On the Theoretical and Practical Uselessness of a Contested Concept

PILAGG e-series/IA/1, 2007

29 Pages Posted: 29 Sep 2015

See all articles by Shotaro Hamamoto

Shotaro Hamamoto

Kyoto University - Faculty of Law

Date Written: October 17, 2013

Abstract

While the positive basis of the obligation to compensate in case of indirect expropriation is to found in the applicable international investment agreement (IIA), its theoritical basis is far from evident. An indirect expropriation causes no transfer of the legal title or the possession of the “expropriated” property and thus no enrichment of the host State. Why, then, is the host State legally required to pay compensation for “effects” of its legislative, administrative or judicial measures that it takes lawfully? The arbitral jurisprudence on indirect expropriation indicates that there exists no difference between an indirect expropriation and a violation of the fair and equitable treatment (FET) obligation, both in terms of the conditions of liability and the method of calculation of compensation. An indirect expropriation is nothing but a violation of the FET obligation.

Suggested Citation

Hamamoto, Shotaro, Requiem for Indirect Expropriation: On the Theoretical and Practical Uselessness of a Contested Concept (October 17, 2013). PILAGG e-series/IA/1, 2007, Available at SSRN: https://ssrn.com/abstract=2666836

Shotaro Hamamoto (Contact Author)

Kyoto University - Faculty of Law ( email )

Yoshida-Honmachi
Sakyo-ku
Kyoto, 606-8501
Japan

HOME PAGE: http://www.hamamoto.law.kyoto-u.ac.jp

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
188
Abstract Views
892
Rank
301,997
PlumX Metrics