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International Investment Law and Comparative Public Law$
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Stephan W. Schill

Print publication date: 2010

Print ISBN-13: 9780199589104

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199589104.001.0001

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The Concept of Indirect Expropriation in Comparative Public Law—Searching for Light in the Dark

The Concept of Indirect Expropriation in Comparative Public Law—Searching for Light in the Dark

Chapter:
(p.107) 4 The Concept of Indirect Expropriation in Comparative Public Law—Searching for Light in the Dark
Source:
International Investment Law and Comparative Public Law
Author(s):

Markus Perkams

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199589104.003.0004

This chapter analyses the concept of indirect expropriation in international investment agreements. In particular, it focuses on the distinction between a compensable indirect expropriation and a non-compensable general regulation. The chapter begins by presenting the uncertainties surrounding the scope of indirect expropriation, which are reflected in partially contradicting decisions of arbitral tribunals. In order to provide some guidance for the interpretation of expropriation provisions in international investment agreements, it analyses the issue as it appears under the European Convention on Human Rights, US constitutional law, German constitutional law, and the law of the European Union. Finally, the approaches found are compared and common principles are extracted that can be used to interpret expropriation provisions in international investment agreements.

Keywords:   indirect expropriation, general regulation, regulatory taking, comparative law, European Convention on Human Rights, constitutional law

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