Reinisch, August --- "Is Expropriation Ripe for Codification? The Example of the Non-Discrimination Requirement for Lawful Expropriations" [2012] ELECD 638; in Bjorklund, K. Andrea; Reinisch, August (eds), "International Investment Law and Soft Law" (Edward Elgar Publishing, 2012)

Book Title: International Investment Law and Soft Law

Editor(s): Bjorklund, K. Andrea; Reinisch, August

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781003213

Section: Chapter 10

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

Author(s): Reinisch, August

Number of pages: 34

Extract:

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,
423­45; 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
228­52; Azinian, Davitian, & Baca v Mexico, Award of 1 November 1999, ICSID
Case No ARB(AF)/97/2, paras 85­124; Azurix v Argentine Republic, Award of 14
July 2006, ICSID Case No ARB/01/12, paras 308­23; Bayindir Insaat Turizm
...