Abstract
AbstractThis article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generis approach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.
Highlights
It is argued that a sui generis approach is needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only can it be treated as an act of expropriation
Must judicial conduct be assessed with reference to the standards of domestic or of international law when determining whether a judicial act amounts to an expropriation? The practice of international courts and tribunals provides little guidance on whether the domestic illegality of a particular judicial measure can serve as an indication in this respect
The article builds on the premise that, since it is uncontested that domestic courts are capable of engaging the responsibility of a State as a result of judicial conduct which is not in conformity with that State’s international obligations, an expropriation claim can be based on the improper conduct of a court
Summary
In the context of expropriation analysis, judicial measures warrant different conceptual treatment than measures taken by other State organs which adversely affect investors’ property This is not because domestic courts have to be judged more carefully than other organs, but because courts, as part of their judicial function, determine the very object that will attract the protection of international law: the underlying proprietary right. This fact is not adequately taken into account in traditional approaches to expropriation analysis, which do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights.
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