The Investment Treaty Arbitration Review: Expropriation

I Expropriation in general

i Introduction

Definition and public international law

Expropriation is generally understood as a host state taking property belonging to a foreign investor. Expropriation is not illegal per se but rather deemed an exercise of the state's fundamental right of territorial sovereignty,2 while conditions of expropriation are imposed by a variety of sources, including domestic laws, investment agreements and customary international law.

Expropriation under international investment law is in line with public international law, because an unlawful taking of property belonging to a foreign investor triggers a state's international responsibility under public international law,3 provided that the taking is attributable to the state.4

International investment agreement practice

The term 'expropriation/expropriate' under international investment agreements (IIAs) is often used alongside the term 'nationalisation/nationalise'.5 Some IIAs also adopt the terms 'dispossession',6 'requisition'7 or 'depriving'8. Although the terms of expression are slightly different, almost all IIAs contain an expropriation provision of which the main idea is to provide guarantees for foreign investors against unlawful taking of their investments, and the variety of the terms used hints at a sense of flexibility as to the application of the expropriation provision.9

ii The object of expropriation

Expropriation provisions in IIAs refer to 'investment' as the object of the expropriation,10 and the scope of the object of the expropriation thus depends on the definition of the 'investment' in the relevant IIA.11

iii Types of expropriation

Depending on the kind of act adopted by the host state, expropriation can be classified as direct or indirect expropriation. Similarly, depending on the legitimacy of the action, expropriation can be either lawful or unlawful.

Direct or indirect expropriation

Direct expropriation mainly refers to a host state's direct taking12 or forcible appropriation13 of an individual investor's investment, alongside which a transfer or annulment of legal title occurs (for further details, see Section II, below). Indirect expropriation, on the other hand, may leave the investor's legal title to, and physical control over, its investment unaffected even though the investment is deprived by the host state of its economic use. There are various forms of indirect expropriation, as recognised by investment tribunals; for instance, creeping expropriation and regulatory expropriation (for further details, see Section III).

Lawful or unlawful expropriation

A host state taking an expropriatory measure is required to comply with certain requirements or conditions contained in IIAs, which normally include the following elements: (1) the measure was adopted for a public purpose or interest, (2) in a non-discriminatory manner, (3) in accordance with due process of law and (4) against the payment of compensation.14

Whether these four conditions have been satisfied should not be confused with a threshold question as to whether a direct or indirect expropriation occurred: '[o]nly after a tribunal concludes that the taking has indeed taken place, it should proceed to examine whether the four conditions have been met'.15

Divergent views exist as regards the role of the fourth condition in determining whether an expropriation is lawful or not. Some tribunals have held that the lack of compensation alone was sufficient for an unlawful expropriation to have taken place.16 Other tribunals have held that the mere fact that an investor has not received compensation does not in itself render an expropriation unlawful.17 One tribunal opined that '[a]n expropriation only wanting fair compensation has to be considered as a provisionally lawful expropriation, precisely because the tribunal dealing with the case will determine and award such compensation'.18

The most significant difference between the consequence of expropriation being held to be lawful or unlawful is the standard of compensation.19 Compensation for a lawful expropriation is normally limited to the market value at the time of the taking.20 In contrast, a finding that expropriation is unlawful for reasons other than the lack of compensation may entitle a claimant investor to request compensation for the value of the expropriated asset on an ex post basis (i.e., on the date of the award).21

iv Applicable law

The substantive law dealing with an expropriation dispute between an investor and the host state is the investment treaty in question, which should be interpreted in accordance with the Vienna Convention on the Law of Treaties.

However, domestic law is relevant for investment tribunals to analyse key issues in an expropriation dispute. First, domestic law deals with the individual investor's property rights.22 This is relevant to decide whether an investor alleging expropriation indeed owns the investment, as well as the nature and extent of the property rights the investor can acquire. Second, domestic law also has a role in deciding whether a compensable expropriation has indeed taken place, or instead whether the purported investment has been subject to permissible regulation pursuant to the 'police power' doctrine.23 Furthermore, domestic law is also relevant to decide whether an expropriation is lawful or unlawful in international law. In particular, an assessment of a contested measure's legality under domestic law is of crucial relevance for investment tribunals' due process analysis.24

ii Direct expropriation

i Introduction

Direct expropriation is a measure taken by a host state that directly removes an investor's legal title over the investment or physically seizes the property.25 It was pointed out by the tribunal in Telenor Mobile v. Hungary that '[n]owadays direct expropriation is the exception rather than the rule, as States prefer to avoid opprobrium and the loss of confidence of prospective investors by more oblique means'.26 Scholars agree with this opinion.27

ii IIA practice

Most IIAs do not explain the meaning of expropriation, whether direct or indirect, while some new generation investment treaties change the situation by attempting to provide a definition for expropriation. For instance, in its Annex B, the US–Uruguay BIT defines 'direct expropriation' as 'where an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure',28 with both parties' recognition that the definition falls within their understanding of 'customary international law'.29 The term 'formal transfer of title or outright seizure' is also adopted in a series of investment agreements entered into by the European Union with other countries.30

iii Jurisprudence

Transfer of title in favour of the host state is the typical scenario of direct expropriation.31 The tribunal in Sempra v. Argentina,32 for example, stated that 'there can[not] be a direct form of expropriation if at least some essential component of the property right has not been transferred to a different beneficiary, in particular the State'.33 The tribunal found no direct expropriation existed because while the rational management was affected because of the government's policies, the investors and the licensee companies were still the rightful owners of the companies and business.34

Although an actual transfer of title might be the most distinguished criterion for direct expropriation, some tribunals have found that other forms of direct expropriation may exist.

For instance, Quiborax v. Bolivia deals with claims arising out of the revocation via a Presidential Decree of 11 mining concessions allegedly owned by the investor. Referring to the previously decided case of another tribunal in Burlington v. Ecuador, the tribunal in Quiborax held that a direct expropriation must entail a permanent deprivation of property that amounts to a forcible taking or transfer to the state while it cannot be justified by the doctrine of police powers.35 Consequently, the tribunal in Quiborax found that the decree revoking the mining concessions constituted a direct expropriation because it had the effect of physically transferring the title of the concessions to the state and was permanent in nature,36 and the measure in question could be justified as an exercise of the state's police powers because it failed to comply with the due process.37 Another example is South American Silver v. Bolivia. The tribunal in that case found that the reversion of the mining concession held by a company that was indirectly owned by the investor to the original ownership of the Bolivian government constituted a direct expropriation.38

As to the relevant point in time, direct expropriation takes place at the time of the transfer or annulment of the legal title.

III Indirect expropriation

i Introduction

Although international law does not lay down definitions for indirect expropriation, it is generally accepted that in indirect expropriation, a substantial deprivation of the value of an investment amounting to effective or de facto taking of property attributable to the state has taken place, so that the investor has lost economical use and enjoyment of its investments.39 Indirect expropriation could be established even if the state has not effected formal transfer of title and physical control of the investment, and even if the state has not obtained any economic benefit.40

Although investment treaties generally do not further divide indirect expropriations into subcategories, some forms have been considered and identified by investment tribunals.

One of these is regulatory expropriation, which refers to cases in which host states' legislative and regulatory measures, rather than judicial misconduct, reduce the benefits of investment.41 The United Nations Conference on Trade and Development (UNCTAD) defines regulatory expropriation as 'takings of property that fall within the police powers of a State, or otherwise arise from State measures like those pertaining to the regulation of the environment, health, morals, culture or economy of a host country'.42 Considerable portions of indirect expropriation cases could fall under the scope of regulatory expropriation, and indirect expropriation is sometimes referred to as a 'regulatory taking'.

Another subcategory or form of indirect expropriation identified by investment tribunals concerns 'creeping expropriation', which is described as a situation in which 'a series of acts attributable to the State over a period of time culminate in the expropriatory taking of such property'.43 In creeping expropriation, each of a series of state acts taken within a limited time span may not be significant or considered as an expropriation, but are regarded as constituent parts of the unified treatment of the investor or investment.44

ii IIA practice

Most investment treaties distinguish between direct and indirect expropriation, adopting similar terms such as 'measures having effect equivalent to nationalisation or expropriation'45 or 'measure tantamount to nationalisation or expropriation' for indirect expropriation.46 Some treaties employ more developed definitions of indirect expropriation; for instance, Article 12 of the Netherlands Model Investment Agreement (2019) defines indirect expropriation as:

a measure or a series of measures of a Contracting Party that has an effect equivalent to direct expropriation, in that it substantially deprives the investor of the fundamental attributes of property in its investment, including the right to use, enjoy and dispose of its investment, without formal transfer of title or outright seizure.47

However, whether brief or detailed, the function of these definitions is far from being sufficient to establish whether an indirect expropriation has occurred.

The detailed formulations of indirect expropriation have been introduced in some investment treaties signed since 2000. This is to some extent because of the acknowledged need of safeguarding a state's right to regulate. For instance, the 2004 and 2012 US Model BITs lay down a criterion for tribunals to conduct a case-by-case, fact-based inquiry as to whether the state's measure, in a specific factual situation, constitutes indirect expropriation. These treaties normally set forth the following factors to consider when determining whether a state action constitutes an indirect expropriation: (1) the economic effect of the government action; (2) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and (3) the character of the government action. They also exempt certain regulatory measures from the scope of indirect expropriation, by providing that, except in the rare circumstance, non-discriminatory measures of a state that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations.48

Some recent Chinese IIAs49 and IIAs concluded between the European Union and other non-EU countries50 also adopt similar approaches.

Some of the most recent treaties, for instance the EU investment agreements, have moved even further, making significant efforts to carve out regulatory space while providing investment protection. The EU–Singapore Investment Protection Agreement (2018), for instance, explicitly provides that the mere fact that a party regulates in a manner that negatively affects an investment or interferes with an investor's expectations does not constitute a breach of the agreement.51

iii Jurisprudence

Investment tribunals have been called on to rule on various measures in alleged indirect expropriations, including tax measures,52 measures restricting imports and exports,53 measures regulating currency and tariffs,54 measures regulating environment and health,55 rules on licences56 and judicial conduct.57 It is generally accepted that a wide range of measures, whether legislative, regulatory or even judicial, potentially are capable of indirectly amounting to expropriation of an investment.

Less agreed are the proper criteria and tests to determine whether a measure constitutes an indirect expropriation, in particular in cases where the instruments invoked stay silent on detailed formulations of indirect expropriation. A consistent line of jurisprudence has held that for an indirect expropriation to be found, the primary question (or even the sole issue) to consider is the effect of the measure on the economic value or the substantial property interests of the investor.58 Further, the measures adopted by the host state must have effected a 'substantial deprivation' of 'the use of reasonably expected economic benefit of the investment'.59 Following the above tests, a diminution of the investment's economic value, for instance, a loss of some of the anticipated returns on investments in shares, or a mere loss in value of an investment, which is not the result of an interference with the control or use of the investment, is not sufficient to establish an indirect expropriation.60 The tests of 'sole effect' and 'substantial deprivation' have also been adopted by investment tribunals in recent cases, holding that an indirect expropriation arises when the investment lost all significant economic value as a result of the state measure's interference.61

However, some tribunals, echoing trends to safeguard host states' right to regulate, and concurrent with the developments of IIAs, have incorporated extra elements aside from 'substantial deprivation' and have applied more comprehensive tests for indirect expropriation; for instance:

  1. a foreign investor is deprived of control over the investment;
  2. deprivation must be permanent;
  3. the measure interferes with the investor's reasonable expectations;
  4. the measure must not be justified by the police powers doctrine; and
  5. the state's action is obviously disproportionate to the need being addressed.62

Some of these tribunals paid particular attention to the purpose and intentions underlying the relevant state conduct.63 Although the above elements and tests are combined case by case, 'substantial deprivation' is always considered a primary factor.

Following the development in investor-state dispute settlement, investment tribunals have come up with two doctrines when considering whether a regulatory measure constitutes an indirect expropriation: the sole-effects doctrine, which requires that reference be made only to the effect of the measure on the property; and the police powers doctrine, which requires global assessment of the measure's purpose, context and nature.64 Under the latter doctrine, indicators of the expropriatory nature of a regulatory measure may include lack of genuine public purpose, of due process, of proportionality, and of fair and equitable treatment, discrimination, abuse of rights and direct benefit to the state.65


Footnotes

1 Qing Ren is a partnerr, Zheng Xu is of counsel and Shuang Cheng is an associate at Global Law Office.

2 Rudolf Dolzer and Christoph Schreuer, Principles of International Investment Law (2nd edition, 2012, Oxford University Press), p. 98.

3 See, e.g., Dolzer and Schreuer (op. cit. note 2), p. 100: note 'an illegal expropriation will fall under the general rules of state responsibility'.

4 International Law Commission (ILC), Draft Articles on Responsibility of States for Internationally Wrongful Acts, Chapter II.

5 See, e.g., Japan–Kazakhstan BIT (signed 23 Oct. 2014), Article 12; China–Turkey BIT (signed 29 Jul. 2015), Article 5; Canada–Moldova BIT (signed 12 Jun. 2018), Article 10; The Energy Charter Treaty (ECT) (signed 17 Dec. 1994), Article 13; North American Free Trade Agreement between Canada, the United States and Mexico (NAFTA) (signed 17 Dec. 1992), Article 1110; Agreement between the United States of America, the United Mexican States, and Canada (USMCA) (signed 30 Nov. 2018), Article 14.8.

6 See, e.g., France–Mexico BIT (signed 12 Nov. 1998), Article 5.

7 See, e.g., Italy–Kazakhstan BIT (signed 22 Sep. 1994), Article 5.

8 See, e.g., Brazil–Netherlands BIT (signed 25 Nov. 1998), Article 6; Netherlands–Bosnia and Herzegovina BIT (signed 13 May 1998), Article 6.

9 See, also, Johanne M Cox, Expropriation in Investment Treaty Arbitration (Oxford University Press, 2019), pp. 278–79.

10 e.g., NAFTA, Article 1110; USMCA, Article 14.8; China–Turkey BIT (2015), Article 5.

11 See the chapter titled 'Covered Investment' in this publication.

12 Feldman v. United Mexican States (Award) 7 ICSID Rep 341, 366 (NAFTA/ICSID (AF), 2002, para. 100.

13 LG&E v. Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability (3 Oct. 2006), para. 187, defines direct expropriation as 'forcible appropriation by the State of the tangible or intangible property of individuals by means of administrative or legislative action'; see, also, Burlington v. Ecuador, ICSID Case No. ARB/08/5, Decision on Liability (14 Dec. 2012), para. 506.

14 e.g., NAFTA, Article 1110; USMCA, Article 14.8; China–Turkey BIT (2015), Article 5; Czech Republic–Moldova BIT (signed on 12 May 1999), Article 5.

15 See, e.g., UNCTAD, Expropriation: A Sequel, 2012, p. 27.

16 e.g., Bernhard von Pezold and others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award (28 Jul. 2015), paras. 491, 497–98.

17 See, e.g., Mobil Cerro Negro Holding, Ltd., Mobil Cerro Negro, Ltd., Mobil Corporation and others v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Award (9 Oct. 2014), para. 301.

18 Tidewater Inc., Tidewater Investment SRL, Tidewater Caribe, C.A., et al. v. The Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/5, Award (13 Mar. 2015), para.141.

19 This is discussed in this publication, in the chapter titled 'Compensation for Expropriation' by Konstantin Christie and Rodica Turtoi.

20 See, e.g., World Bank Guidelines on the Treatment of Foreign Direct Investment, IV (3): 'Compensation will be deemed “adequate” if it is based on the fair market value of the taken asset as such value is determined immediately before the time at which the taking occurred or the decision to take the asset became publicly known.'; ECT, Article 13; Japan–UAE BIT (signed 30 Apr. 2018), Article 12.

21 Magyar Farming Company Ltd, Kintyre Kft and Inicia Zrt v. Hungary, ICSID Case No. ARB/17/27, Award (13 Nov. 2019), paras. 368–69.

22 See, e.g., Emmis International Holding, B.V., Emmis Radio Operating, B.V., MEM Magyar Electronic Media Kereskedelmi és Szolgáltató Kft. v. The Republic of Hungary, ICSID Case No. ARB/12/2, para. 162.

23 See, e.g., Saluka Investments BV v. Czech Republic, UNCITRAL, Partial Award (17 Mar. 2006), paras. 271–75 (the Saluka v. Czech Republic tribunal found that the government applied Czech law in a reasonable manner and the measure was upheld by domestic courts. The tribunal thus determined that no expropriation occurred). See, also, Casinos Austria International GmbH and Casino Austria Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/14/32, Award (5 Nov. 2021) (Casinos Austria v. Argentina), para. 340.

24 See, e.g., Olin Holdings Ltd v. Libya, ICC Case No. 20355/MCP, Final Award (25 May 2018), paras. 170–72. The Olin v. Libya tribunal concentrated its due process analysis with reference to the Libyan Investment Law, which provides that 'a law or judicial decision' is required for an expropriation to be lawful. One should note, however, that the measure's legitimacy under domestic law does not necessarily justify it under international law. See, e.g., Casinos Austria v. Argentina (op. cit. note 24), paras. 357–59. Although the local government's revocation of the claimants' casino licence was upheld by local authorities and a domestic court, the majority of the Casinos Austria v. Argentina tribunal still found the revocation decision arbitrary and disproportionate from the perspective of international law and, therefore, constituted an improper exercise of state's regulatory powers and an unlawful expropriation. Argentina's application for annulment of the award was registered by ICSID on 9 March 2022 and the case is currently pending for annulment proceedings.

25 UNCTAD defines direct expropriation as 'a mandatory legal transfer of the title to the property or its outright physical seizure. Normally, the expropriation benefits the State itself or a State-mandated third party.'

26 Telenor Mobile Communications AS v. The Republic of Hungary, ICSID Case No. ARB/ 04/15, Award (13 Sep. 2006), para. 69.

27 Christoph Schreuer, 'The Concept of Expropriation under the ECT and other Investment Protection Treaties' in Transnational Dispute Management Journal, Volume II, Issue 5 (November 2005), p. 3; Dolzer and Schreuer (op. cit. note 2), p. 101.

28 US–Uruguay BIT (signed 4 Nov. 2005), Annex B, para. 3.

29 ibid., Annex A. See, also, US Model BIT (2012).

30 See, e.g., EU–Vietnam Investment Protection Agreement (signed 30 Jun. 2019) Annex 4, para. 1(a); EU–Singapore Investment Protection Agreement (signed 15 Oct. 2018) Annex 1, para. 1; Canada–EU Comprehensive Economic and Trade Agreement (signed 30 Oct. 2016) Annex 8-A, para. 1(a).

31 See Dolzer and Schreuer (op. cit. note 2), p. 101: note 'the difference between a direct or formal expropriation and an indirect expropriation turns on whether the title of the owner is affected by the measure in question'.

32 Sempra Energy International v. Argentine Republic, ICSID Case No. ARB/02/16 (2007). Award later annulled by an ICSID ad hoc committee because of the tribunal's failure to interpret and apply Article XI (defence of necessity) of the US–Argentina BIT but collapse it into the stricter notion under customary international law.

33 ibid., para. 280.

34 The tribunal also mentions that a transfer of property and ownership requires positive intent.

35 Quiborax v. Bolivia, ICSID Case No. ARB/06/2 (2015), para. 200.

36 ibid., paras. 228–34.

37 ibid., para. 227.

38 South American Silver Limited v. The Plurinational State of Bolivia, Permanent Court of Arbitration (PCA) Case No. 2013-15, Award (22 Nov. 2018), paras. 551, 619.

39 See, for instance, Windstream Energy v. Canada PCA, Award (27 Sep. 2016), para. 284; see also LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability (3 Oct. 2006); Burlington Resources Inc. v. Ecuador, ICSID Case No. ARB/08/5, Decision on Liability (14 Dec. 2012); Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award (30 Aug. 2001); Compañiá de Aguas del Aconquija S.A. and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/97/3, Award (20 Aug. 2007); Técnicas Medioambientales Tecmed S.A. v. The United Mexican States, ICSID Case No. ARB(AF)/00/2), Award (29 May 2003).

40 Electrabel S.A. v. The Republic of Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability (30 Nov. 2012), para. 6.53. See, also, Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan, ICSID Case No. ARB/12/6, Award (4 May 2021), para. 810 and Muhammet Çap & Sehil Inşaat Endustri ve Ticaret Ltd. Sti. v. Turkmenistan, ICSID Case No. ARB/12/6, Award (4 May 2021), para. 810.

41 Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A.) v. Argentine Republic (II), ICSID Case No. ARB/03/19, Decision on Liability (30 Jul. 2010), para. 132.

42 United Nations, Expropriation, UNCTAD Series on Issues in International Investment Agreements, 'Taking of property' (2000), p. 12.

43 Generation Ukraine Inc. v. Ukraine, ICSID Case No. ARB/00/9, Award (16 Sep. 2003), para. 20.22.

44 United Nations, Expropriation, UNCTAD Series on Issues in International Investment Agreements II (2012), p. 11; Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Award (6 Feb. 2007), para. 263.

45 The Energy Charter Treaty (adopted 17 Dec. 1994), Article 13; Agreement Between the Government of the People's Republic of China and the Government of the Republic of Singapore on the Promotion and Protection of Investments (adopted 21 Nov. 1985), Article 6.

46 NAFTA, Article 1110.

47 Netherlands Model Investment Agreement (22 Mar. 2019), Article 12.

48 US Model BIT (2004), Annex B, Article 4; US Model BIT (2012), Annex B, Article 4.

49 For instance, Agreement Between the Government of Canada and the Government of the People's Republic of China for the Promotion and Reciprocal Protection of Investments (adopted 9 Sep. 2012), Annex B.10; Free Trade Agreement between the Government of the People's Republic of China and the Government of the Republic of Korea (adopted 1 Jun. 2015), Annex 12-B.

50 For instance, Comprehensive Economic and Trade Agreement between Canada and the European Union (2016), Annex 8-A, para. 2. Notably, under this Agreement, investment tribunals are required by contracting states to take into consideration, aside from factors similar to those in the US Model BIT, the 'duration of the measure or series of measures of a Party'. Also, when considering the character of the measure or series of measures, investment tribunals are required to consider, in particular, the measures' 'object, context and intent'.

51 Investment Protection Agreement between the European Union and its Member States, of the one part, and the Republic of Singapore of the other part (adopted 19 Oct. 2018), Article, 2.2(2).

52 For instance, Burlington Resources, Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Liability (14 Dec. 2012); Perenco Ecuador Limited v. Republic of Ecuador (Petroecuador), ICSID Case No. ARB/08/6, Decision on Remaining Issues of Jurisdiction and on Liability (12 Sep. 2014); Vincent J. Ryan, Schooner Capital LLC, and Atlantic Investment Partners LLC v. Republic of Poland, ICSID Case No. ARB(AF)/11/3, Award (24 Nov. 2015); OOO Manolium Processing v. The Republic of Belarus, PCA Case No. 2018-06, Final Award (22 Jun. 2021).

53 For instance, Pope & Talbot v. Government of Canada, Interim Award (26 Jun. 2000); S. D. Myers, Inc. v. Government of Canada, Partial Award (Merits) (13 Nov. 2000); Grand River Enterprises Six Nations, Ltd., et. al. v. United States of America, Award (12 Jan. 2011).

54 For instance, Suez, InterAguas Servicios Integrales del Agua S.A., Sociedad General de Aguas de Barcelona S.A. v. The Argentine Republic, ICSID Case No. ARB/03/17, Decision on Liability (30 Jul. 2010); Total S.A. v. Argentine Republic, ICSID Case No. ARB/04/1, Decision on Liability (27 Dec. 2010).

55 For instance, Crompton (Chemtura) Corp. v. Government of Canada, PCA Case No. 2008-01, Award (2 Aug. 2010); Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award (4 Apr. 2016); Philip Morris Brand Sàrl (Switzerland), Philip Morris Products S.A. (Switzerland) and Abal Hermanos S.A. (Uruguay) v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award (8 Jul. 2016); Eco Oro Minerals Corp. v. Republic of Colombia, ICSID Case No. ARB/16/41, Decision on Jurisdiction, Liability and Directions on Quantum (9 Sep. 2021).

56 For instance, Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award (4 Apr. 2016); Sanum Investments v. Lao People's Democratic Republic (I), PCA Case No. 2013-13, Award (6 Aug. 2019); Casinos Austria v. Argentina (op. cit. note 24).

57 For instance, Dan Cake (Portugal) S.A. v. Hungary, ICSID Case No. ARB/12/9, Decision on Jurisdiction and Liability (24 Aug. 2015); Standard Chartered Bank (Hong Kong) Limited v. United Republic of Tanzania, ICSID Case No. ARB/15/41, Award (11 Oct. 2019); Karkey Karadeniz Elektrik Uretim A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/13/1, Award (22 Aug. 2017); OOO Manolium Processing v. The Republic of Belarus, PCA Case No. 2018-06, Final Award (22 Jun. 2021).

58 Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award (30 Aug. 2000), para. 103; Pope & Talbot v. Government of Canada, Interim Award (26 Jun. 2000), para. 102; Zhongshan Fucheng Industrial Investment Co. Ltd. v. The Federal Republic of Nigeria, Final Award (26 Mar. 2021), para. 131.

59 Occidental Exploration and Production Company v. The Republic of Ecuador, LCIA Case No. UN3467, Award (1 Jul. 2004), para. 89; Quiborax S.A., Non-Metallic Minerals S.A. v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Award (16 Sep. 2015), para. 238; Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability (30 Nov. 2012), para. 6.62.

60 Charanne B.V. and Construction Investments S.A.R.L. v. Spain, SCC Case No. 062/2012, Final Award (21 Jan. 2016), paras. 458–59; El Paso Energy International Company v. Argentine Republic, ICSID Case No. ARB/03/15, Award (31 Oct. 2011), para. 255; 9REN Holding S.a.r.l v. The Kingdom of Spain, ICSID Case No. ARB/15/15, Award (31 May 2019), paras. 369–72.

61 Spółdzielnia Pracy Muszynianka v. Slovak Republic, PCA Case No. 2017-08, Award (7 Oct. 2020), para. 638; Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic, ICSID Case No. ARB/14/3, Decision on Annulment (13 Apr. 2020), para. 81.

62 Casinos Austria v. Argentina (op. cit. note 24), paras. 331–37; GPF GP S.à.r.l v. Poland, SCC Case No. 2014/168, Final Award (29 Apr. 2020), para. 460; Burlington v. Ecuador, Decision on Liability, paras. 471–73; Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21, Award (30 Nov. 2017), para. 415; Methanex Corporation v. United States of America, Final Award of the Tribunal on Jurisdiction and Merits (3 Aug. 2005), para. 7.

63 Marfin Investment Group v. The Republic of Cyprus, ICSID Case No. ARB/13/27, Award (26 Jul. 2018), para. 830.

64 Johanne M Cox, Expropriation in Investment Treaty Arbitration (2019, Oxford University Press), p. 156, footnote 10, citing Mostafa, 'The Sole Effects Doctrine, Police Powers and Indirect Expropriation under International Law', 15 Australian International Law Journal, 2008.

65 UNCTAD Report, 'Expropriation: A Sequel', 2012, p. 94.

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