Winters, Kevin
(2015)
Indirect and regulatory expropriation in international investment law: a critical review.
LL.M(R) thesis, University of Glasgow.
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Abstract
The task of this thesis is to critically review the established position, regarding the
distinction that exists between compensable indirect and non-compensable regulatory
expropriation by states. It is commonly asserted that indirect expropriation by states will
merit swift and adequate compensation for investors that suffer damage to their property.
However indirect expropriation that is the result of the exercise of state regulatory
practices will not result in any such award to investors. In order to be convincing the
distinction between these two practices must be clearly identifiable. Moreover the
concepts used to construct these doctrines must be sufficiently robust to withstand logical
scrutiny. The central argument of this thesis is that the distinction is not sufficiently clear
to be credibly defended in the context of investment disputes.
Throughout, this thesis draws on the rulings of investment tribunals and the writings of
scholars on how this distinction has been created and subsequently defended in
international investment law. Furthermore it also seeks to grapple with the challenges that
appear evident in reconciling the rights of states and investors when dealing with a claim
of expropriation.
The intention in doing so is to appraise the accepted wisdom, and to highlight the
underpinning rationale so as to demonstrate the fundamental flaws that have created the
current state of affairs in international investment law.
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