Indirect Expropriation in International Law

Escarcena, Sebastián López

doi:10.4337/9781782544111

Cited by 27 publications

(6 citation statements)

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“…64 The doctrine also says that foreign investors may not be better treated than the citizens of the expropriating state. 65 The Calvo Doctrine also prohibits the use of diplomatic intervention as a method of enforcing private claims before local remedies have been exhausted. This principle is reflected in many United Nations documents of the sixties and seventies.…”

Section: Calvo Doctrinementioning

confidence: 99%

The development of compensation theories in international expropriation law

Víg

Gajinov

2016

Hungarian Journal of Legal Studies

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The majority of states recognize the lawfulness of expropriation or nationalization of foreign property, provided the taking is non-discriminatory; there is a public purpose; compensation is paid for the taken property; and due process of law is respected. The standard of compensation paid for the taken property is the most disputed requirement. This work examines the development of compensation theories through the most important milestone cases, the Hull and Calvo doctrines, United Nations' documents and the Restatement (Third) of Foreign Relations Law of the United States.

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Section: Calvo Doctrinementioning

confidence: 99%

The development of compensation theories in international expropriation law

Víg

Gajinov

2016

Hungarian Journal of Legal Studies

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“…Such creeping expropriation occurs when a host government imposes regulations that gradually limit the exercise of private ownership rights by the foreign‐owned business (Schaffer et al, 2012). This regulatory expropriation, a subcategory of indirect expropriation 1 (Escarcena, 2014; Isakof, 2013), may subject foreign direct investment (FDI) to such things as: discriminatory taxes, domestic government controls over management of the foreign‐owned firm, price controls, mandatory employment of nationals, cancellation of government‐issued business licenses, and restrictions on currency convertibility (Schaffer et al, 2012), among others. While Rice and Zegart (2018a, p.132) believe that “expropriating leaders are far less common than they used to be,” it does not mean that this expropriation is not being undertaken utilizing more subtle regulatory actions.…”

Section: Introductionmentioning

confidence: 99%

Artificial intelligence and the fifth phase of political risk management: An application to regulatory expropriation

Hemphill

Kelley

2021

Thunderbird Intl Bus Rev

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Using the context of regulatory expropriation, this article extends political risk management theories, forecasting methodologies (employing artificial intelligence, machine learning, and data analytics), and human intelligence evaluation tools useful for multinational enterprise executives in their planning and decision‐making responsibilities. The article identifies three key areas where artificial intelligence will specifically assist managers in analyzing and mitigating risks: (a) earlier identification of risks, (b) precision in risk assessment, and (c) identification of unknown unknown risk correlations. These three categories also represent how artificial intelligence and its application to political risk assessment will evolve in the fifth phase of political risk management, and why it is of particular relevance to risks such as regulatory expropriation. Using the example of an oil exploration joint venture between Russian TNK and BP, and reflecting political and public policy indicators of regulatory expropriation, this political risk management framework and its hypothetical development are illustrated.

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“…Thus, access to justice has historically remained problematic for aliens for a long time (Francioni, 2009). The right to own property was only reasserted by the UN General Assembly in 1986 (Escarcena, 2014).…”

Section: Introductionmentioning

confidence: 99%

“…In the modern international system, the State is not prevented from interfering with the use of property, being it that of a national or foreigner provided that such usages produce a result that is justified and the correspondent authorities observe a fair balance between individual and community interests in the entire process (Escarcena, 2014). For instance, according to Article 14 of the 1981 African Charter on Human and Peoples' Rights (the Banjul Charter) "the right to property shall be guaranteed", but "may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws" (OAU/AU, 1981).…”

Section: Introductionmentioning

confidence: 99%

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State Responsibility and the Question of Expropriation: A Preliminary to the “Land Expropriation without Compensation” Policy in South Africa

Kwarteng¹,

Botchway²

2019

JPL

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Expropriation is a right granted to States under international law; however this right does not guarantee States to abuse their power to unlawfully seize properties without following due process or paying the right compensation. In August 2018, the president of South Africa proposed a bill that would allow the government to expropriate land without compensation and this bill has attracted the attention of both scholars of international law and foreign investors.With a qualitative approach and a cross sectional analysis of data, this article seeks to analyze the nature of this bill to determine whether it infringes on the principles and practice of international law, as well as the likely consequences that the bill could have on the global image of South Africa and foreign direct investment in the country. The research approach allowed the authors to analyze important literature while making inferences to cases of expropriation in different parts of the world and juxtaposing them with South Africa's intended policy.The article concludes that one of the main critical issues for determining the lawful nature of expropriation is that it should be accompanied by an appropriate, adequate, effective, and prompt compensation, and as such not only does this bill constitute to a breach of international law but it will also damage the economy by scaring foreign investors away. In addition, the State would be compelled to spend millions of the already limited resources of the country in defending itself against international lawsuits that will be filed by affected individuals. It is thus suggested that a much better approach for land reform should be adopted by the government in its quest for development.

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Indirect Expropriation in International Law

Cited by 27 publications

References 0 publications

The development of compensation theories in international expropriation law

The development of compensation theories in international expropriation law

Artificial intelligence and the fifth phase of political risk management: An application to regulatory expropriation

State Responsibility and the Question of Expropriation: A Preliminary to the “Land Expropriation without Compensation” Policy in South Africa

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