Extricating the Illegality Requirement from Judicial Expropriation

Abstract

Judicial expropriation is the snow leopard of international investment law. Apparently it exists, but it is almost impossible to find. It was last spotted back in 2009, specifically in Saipem v Bangladesh. Since then, many investors have gone on expeditions looking for it, but arbitral tribunals have consistently disappointed them. Arbitral tribunals have rather been making it practically impossible for investors to plead it successfully. Their tactic for this purpose is crossbreeding judicial expropriation with denial of justice. Looking at the current jurisprudence, judicial expropriation is denial of justice on steroids. This paper is a rehabilitative project for a pure form of judicial expropriation. It demonstrates that judicial expropriation is a separate species and it should be kept separate for doctrinal reasons. Moreover, the pure form of judicial expropriation will not terrorise domestic courts if arbitral tribunals let it roam free. Contrary to some perceptions, its recognition will not open floodgates for investors to challenge adverse decisions from domestic courts. Additionally, if an arbitral tribunal applies a pure form of judicial expropriation, this does not translate into international substantive review of domestic decisions.