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7 - Expropriation: A New Beginning

Published online by Cambridge University Press:  17 April 2021

Jörg Kammerhofer
Affiliation:
Albert-Ludwigs-Universität Freiburg, Germany
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Summary

In this chapter, the method of ‘frame-determination’ for IIA expropriation clauses is applied and three limits of the actus reus condition of typical IIA expropriation clauses are identified. (1) On the macro-structural level, concerning the interaction of IIA clauses with the rest of international law, facile references to customary international law are shown to be problematic: ‘’ in IIAs does not refer to a customary norm of certain validity and great specificity. (2) On the micro-structural level, the necessity of treating direct and indirect expropriation as fully equivalent is structurally inherent in typical IIAs. (3) All legality conditions are equal and cannot be doubled in the actus reus of indirect expropriation. The structure of typical IIA clauses does not support the majority of arguments based on ‘police powers’ or on a ‘right to regulate’.

Type
Chapter
Information
International Investment Law and Legal Theory
Expropriation and the Fragmentation of Sources
, pp. 186 - 262
Publisher: Cambridge University Press
Print publication year: 2021

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  • Expropriation: A New Beginning
  • Jörg Kammerhofer, Albert-Ludwigs-Universität Freiburg, Germany
  • Book: International Investment Law and Legal Theory
  • Online publication: 17 April 2021
  • Chapter DOI: https://doi.org/10.1017/9781108989428.008
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  • Expropriation: A New Beginning
  • Jörg Kammerhofer, Albert-Ludwigs-Universität Freiburg, Germany
  • Book: International Investment Law and Legal Theory
  • Online publication: 17 April 2021
  • Chapter DOI: https://doi.org/10.1017/9781108989428.008
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Expropriation: A New Beginning
  • Jörg Kammerhofer, Albert-Ludwigs-Universität Freiburg, Germany
  • Book: International Investment Law and Legal Theory
  • Online publication: 17 April 2021
  • Chapter DOI: https://doi.org/10.1017/9781108989428.008
Available formats
×