Expropriation

Abstract

Chapter 6 analyses the functional equivalence of protection against expropriation clause in intra-EU BITs with EU law and argues that investor protection against expropriation and safeguards in cases of property taking are fully replicated in the legal systems of the EU and its MS. Rights to property are protected by both the Convention and the EU Charter in cases of direct as well as indirect expropriation. Yet, the margin of appreciation doctrine used by the European Court of Human Rights (ECtHR) allows for more deference in favour of the host states in comparison to the whole range of approaches available to investment arbitrators. Based on the review of EU and ECHR case law I argue that the compensation schemes under EU and ECHR law are considerably lower, and unlike the full market value standard in investment arbitration, they lack predictability. Also, the lengthiness of the process of getting compensated makes the protection of property rights considerably more frustrating in EU law as compared to BITs.