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od 15.4.2007
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Sekanina O.: Indirect expropriation in the practice of international investment arbitrations
One of the key spheres of international law of investment protection is the issue of indirect expropriation, especially in relation to legitimate regulatory measures of the host country. Distinguishing whether in the actual case it is indirect expropriation or legitimate regulation is absolutely crucial, because in the first case the affected foreign investor will be entitled to compensation of the existing damage, but in the other case he will not be entitled to it. There are three basic approaches used by arbitration courts in assessing whether in the actual case indirect expropriation took place. In the framework of the first approach arbitration courts place stress on the impact of the state measure on the investor, in such case evaluating especially the measure of interference in the investment and in relation to this the issue of remaining control and acknowledgement of partial expropriation, and the legitimacy of the investors expectations. In the framework of the second approach some arbitration courts focus their attention more on the purpose followed by the state in adopting a measure with expropriating impacts. The third approach combines the two previous ones and tries to compare what prevails, whether the element of legitimate state regulation or the element of expropriating impact on the investor. Each of these approaches is illustrated by several cases from the practice of arbitration courts and the problems related to them are pointed at briefly
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