An epistemological approach to the study of the features of indirect expropriation in the modern realities of the international legal context

Abstract

This article examines approaches to defining the concept and content of indirect expropriation, the current state of legislation and law enforcement practice regarding the protection of foreign investments from the above-mentioned actions. The findings show that judicial and arbitral institutions often avoid the need to make clear conclusions regarding the presence/absence of indirect expropriation without adequate compensation in the host state's actions. The analysis of modern international legal acts and arbitration practice indicates that there are different approaches to determining the legality of indirect expropriation or measures equated to the latter and disregarding the possibility of regulatory expropriation by the host state. The proportionality approach is insufficient to preserve the distinction between indirect expropriation and regulatory expropriation in international investment law. Having identified weaknesses in the analytical framework that tribunals use in attempting to distinguish between indirect and regulatory expropriation, the question remains whether the concepts of indirect and regulatory expropriation are treated more consistently and predictably as distinct practices that must be reliably support. It is presented that regulatory expropriation is identical to direct expropriation, when the host state complies with the criteria of legality of expropriation, in addition, there is a clearly expressed public necessity, it is not subject to dispute, including by a foreign investor. The demands of the foreign investor must be met with immediate, proper, full compensation for the investments made, and there is no need to appeal the decision on the transfer of property into state ownership. In other cases, when the basis for confiscation of property is the adopted legal acts that violate the regime of the greatest support for the investment activity of foreign investors, do not have a justification of social necessity for their adoption and are aimed at depriving a person of the title of ownership of the property without payment of compensation – such actions can qualify as indirect (hidden) expropriation.