Determination of Indirect Expropriation and Doctrine of Police Power in International Investment Law: A Critical Appraisal

Abstract

This paper inquires whether the ITA tribunals, while judging whether a host State’s regulatory measures amount to indirect expropriation or not, have been able to develop and apply the police power doctrine in a uniform manner? This inquiry is important to understand whether this doctrine could serve as a benchmark to judge a host State’s regulatory measures. The methodology adopted to do this is first to identify ITA cases, which talk about this doctrine, followed by studying cases where the doctrine of police power was referred by the parties or used for disputes, related to indirect expropriation, by ITA tribunals and to see whether the approach of different arbitral tribunals was similar or different.

Keywords: BIT, Investment Treaty Arbitration, Investment, Police Power, Expropriation

JEL Classification: F20, F21