COMPENSATION FOR EXPROPRIATIONS IN A WORLD OF INVESTMENT TREATIES: BEYOND THE LAWFUL/UNLAWFUL DISTINCTION

• 成果类型: Article
• 署名作者: Ratner, Steven R.
• 署名单位: University of Michigan System; University of Michigan
• 刊物名称: AMERICAN JOURNAL OF INTERNATIONAL LAW
• ISSN/ISSBN: 0002-9300
• DOI: 10.1017/ajil.2016.2
• 发表日期: 2017
• 页码: 7-56
• 关键词: ARBITRATION; DAMAGES; LAW

摘要

When a state expropriates a foreign investment in violation of an investment treaty, where should a tribunal look for a compensation standard? Tribunals have offered wildly different answers, trapped in a paradigm that distinguishes between lawful and unlawful expropriations. This article evaluates and criticizes the case law, offering a new framework grounded in five purposes of a remedy. Compensation should take account of specific aspects of the expropriation, including whether the state's failure to pay stemmed from a bona fide disagreement with the investor and whether the treaty's procedural criteria were violated. It concludes with implications for violations of other investor protections.