Extricating the Illegality Requirement from Judicial Expropriation

31 Pages Posted: 8 Dec 2020

See all articles by Martin Jarrett

Martin Jarrett

Max Planck Institute for Comparative Public Law and International Law

Date Written: December 7, 2020

Abstract

Judicial expropriation is the snow leopard of international investment law. Apparently it exists, but it is almost impossible to find. It was last spotted back in 2009, specifically in Saipem v Bangladesh. Since then, many investors have gone on expeditions looking for it, but arbitral tribunals have consistently disappointed them. Arbitral tribunals have rather been making it practically impossible for investors to plead it successfully. Their tactic for this purpose is crossbreeding judicial expropriation with denial of justice. Looking at the current jurisprudence, judicial expropriation is denial of justice on steroids.
This paper is a rehabilitative project for a pure form of judicial expropriation. It demonstrates that judicial expropriation is a separate species and it should be kept separate for doctrinal reasons. Moreover, the pure form of judicial expropriation will not terrorise domestic courts if arbitral tribunals let it roam free. Contrary to some perceptions, its recognition will not open floodgates for investors to challenge adverse decisions from domestic courts. Additionally, if an arbitral tribunal applies a pure form of judicial expropriation, this does not translate into international substantive review of domestic decisions.

Keywords: Investor-State Dispute Settlement, Expropriation, Judicial Conduct, Causation, Investment Treaties, International Responsibility

Suggested Citation

Jarrett, Martin, Extricating the Illegality Requirement from Judicial Expropriation (December 7, 2020). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-50, Available at SSRN: https://ssrn.com/abstract=3743971 or http://dx.doi.org/10.2139/ssrn.3743971

Martin Jarrett (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

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