Indirect Expropriation and its Valuation in the BIT Generation

The number of bilateral investment treaties (BITs) has increased dramatically in the past decade. Until the mid-1970s, a bare handful of BITs existed, and the numbers increased only at a slow or moderate pace until the early 1990s. By September 1994, however, some 140 states had concluded more than 700 BITs, by 1999, more than 1300 BITs had entered into force among about 160 stats, and by the end of 2002, 2181 BITs had been signed. Particular provisions of BITs vary from state to state. But certain general features, which respond to the demands of expanding globalization and, as a consequence, the increasing interdependence of national economies, characterize virtually all BITs. BITs seek to establish a stable, orderly framework for investment by creating, as the preamble to a typical United Kingdom BIT states, \u27favourable conditions for greater investment by nationals and companies of one state in the territory of the other state.\u2

The Prosecution of Public Figures and the Separation of Powers: Confusion within the Executive Branch

Criminal investigation and prosecution of politicians, top civil servants and other public figures are topics frequently discussed in the media. The nature of the investigating or prosecuting authority varies between countries; from the general public prosecutor, through magistrates to independent counsels or parliamentary investigation commissions. This paper analyzes the role and status of public prosecutors within separation of powers-concept. Prosecutors are usually part of the executive and not the judicial branch, which implies that they do not enjoy the same degree of independence as judges, and are ultimately subordinated to the directives of the minister of justice or the government. Conflicts of interest may hence arise if members of government can use the criminal process for their own or partisan interests. The incentives of public prosecutors in different jurisdictions are compared.Separation of Powers, Public Prosecution, Government Offences, and Positive Constitutional Economics,

THE DOCTRINE OF ADMINISTRATIVE TRESPASS IN FRENCH LAW: AN ANALOGUE OF DUE PROCESS

The French droit administratif, since Dicey\u27s critical and unsympathetic comments in his lectures and works on the English constitution, has continued to attract a great deal of interest in the English-speaking world. In this country the more recent references to the system known by that name are prompted by something more than academic curiosity. Unprecedented expansion of administrative activity, particularly on the part of the federal government, has focused attention on many problems which have become acute because of that fact. Unquestionably, one of the most vexing among them is the question of review of administrative action upon the application of interested private parties. It is natural that the solutions found elsewhere should be inquired into, and that the French system of adjudication by special administrative courts should receive particular consideration. However, if French administrative law is identified with this one characteristic, while other important features of the system are left unnoticed, the view obtained is necessarily incomplete and distorted

Socorro Chieftain, 10-20-1906

https://digitalrepository.unm.edu/socorro_c_news/1457/thumbnail.jp

Taylor v. Taylor Appellant\u27s Brief Dckt. 44833

https://digitalcommons.law.uidaho.edu/idaho_supreme_court_record_briefs/7790/thumbnail.jp

Humanitarian Intervention Under Contemporary International Law: A Policy-Oriented Approach

The last decade has been marked by a revival of interest in the contemporary applicability of traditional international law doctrines of humanitarian intervention. During the period between the two world wars, a significant number of state elites adhered to a strict construction of the theory that under international law each nation is completely sovereign and independent . Hence, since international law deals solely with external relations between states, and since what occurs within the state between the sovereign and his subjects has, by definition, no effect on external inter-state relations, intervention for humanitarian purposes by another state on behalf of the subjects of a foreign :\u27sovereign lay outside the scope of international law. Under this theory it was lawful for a foreign state to criticize Hitler\u27s treatment of Polish Jews, but Hitler\u27s persecution of German Jews was entirely his affair. Writing in 1956, summarizing the experience of the thirties, the Thomases were able to conclude that Not even the most revolting violations of the common laws of decency and humanity committed by a government against its own subjects was sufficient grounds for other states to criticize officially the political organization which made such outrages possible. Humanitarian intervention in the twentieth century, therefore, retains but little vigor

Indirect Expropriation and its Valuation in the BIT Generation

Bilateral investment treaties (BITs), which have proliferated at an astonishing pace in the past decade, commonly seek to establish a stable, orderly framework for foreign investment by creating favorable conditions for greater investment by nationals and companies of one state in the territory of the other state. Unlike their predecessors of an earlier generation, i.e., friendship, commerce, and navigation treaties (FCNs), in the area of foreign investment, BITs require more than the mere prohibition of expropriation without compensation. The BIT generation, weaned on Hayek and navigating amid the detritus of hundreds of well-intentioned but disastrous multilateral and national development programs, has come to appreciate that the profits of the foreign investor, no less than the benefits of the multiplier effect for the host state\u27s economy, require an appropriate normative framework: impartial courts, an efficient and legally restrained bureaucracy, and the measure of transparency in decision that has increasingly been recognized as a control mechanism over governments and a vital component of the international standard of governance. In a BIT regime, the host state must therefore do far more than simply open its doors to foreign investment and refrain from overt expropriation; it must also establish and maintain the legal and normative environment that modern investment theory recognizes as a conditio sine qua non for the success of private enterprise. BITs, in short, consciously seek to approximate in the developing, capital-importing state the minimal legal, administrative, and regulatory framework that fosters and sustains investment in industrialized, capital-exporting states. Recognizing the need to attract foreign capital and technology, putative capital-importing states do not wish to be perceived as posing a frequent or arbitrary threat of expropriation; and with the eclipse of socialism, direct expropriation has become relatively rare. But the threat of indirect expropriation remains and has probably increased. In particular, in the BIT generation, two principal species of indirect expropriation can be identified and distinguished: creeping and consequential expropriations. A creeping expropriation denotes an expropriation accomplished by a cumulative series of regulatory acts, malfeasance, and omissions (perhaps interspersed with lawful acts) over a prolonged period of time, no one of which can necessarily be identified as the decisive event that deprived the foreign investor of the value of its investment. Consequential expropriations consist in the host state\u27s failure to create, maintain or properly manage the normative framework vouchsafed by the relevant BIT. Neither of these forms of expropriation would have been clearly, if at all, recognized in the FCN generation. Yet both pose acute and novel problems with respect to (i) the determination of liability, i.e., at what stage the host state\u27s regulatory measures or non-feasance should be deemed expropriatory; and (ii) valuation, i.e., as of what date the value of property rights so expropriated should be appraised. We therefore suggest that in certain cases, to respect Chorzów Factory\u27s requirement of restitutio in integrum, tribunals will find it useful and appropriate to disaggregate the moment of expropriation, which goes to liability, from the moment of valuation, which goes to damages. Recognition of these forms of indirect expropriation and reflection on the appropriate means for their valuation will contribute in the long term to fortifying the stable and predictable legal environment for foreign investment upon which foreign investors and developing states alike depend in the BIT generation