But Is It Just? The Inability for Current Adjudicatory Standards to Provide “Just Compensation” for Creeping Expropriations

November 1, 2012

In hopes of promoting foreign direct investment, the world has experienced an influx of bilateral investment treaties over the past twenty years. One protection these treaties afford to foreign investors is the guarantee of “just compensation” if the host government expropriates their investment, either directly or indirectly. Extensive jurisprudence exists discussing how a tribunal determines “just compensation” in cases of expropriation; however, these methods have historically revolved around valuing direct expropriations. While tribunals use these same methods to value indirect expropriations, analysis of these adjudications, particularly in the cases of a creeping expropriation, result in inconsistent and unpredictable outcomes

This Note considers two areas—timing and methodology—that have led to these inconsistent rulings. The Note first discusses the current international standards used in these areas and then looks at alternative methods suggested by scholars to address the resulting inconsistencies. It concludes by arguing that in cases of creeping expropriations, tribunals should implement some variation of these alternative methods in order to produce more consistent outcomes.

November 2012

No. 2