The concept of indirect taking lacks of a clear definition. Instead, it appears as a concept having a variable geometry. Contrary to the characterization of a situation of direct expropriation which is relatively easy and straightforward (ex: nationalization of an investment), the characterization of a situation of indirect taking appears as a much more complex operation. While determining whether a situation can fall within the category of indirect taking, tribunals undertake a case by case study and seem to refer to a myriad of criteria. To this respect, the CMS case seems to develop and elaborate much more complete and clear criteria that the Saluka case. This aspect may be partially due to the very wording of the different Bilateral Investment Treaties or BITs in question in each case. A very vague and general wording of a BIT will certainly give a tribunal more latitude in its interpretation than a meticulously written BIT.
[...] Yet, all the cases mentioned give an idea of what an indirect taking is. Unfortunately, they don't give a uniform picture of the notion. For example, the difference between the notion of “effective neutralization of the use/enjoyment of property” and the notion of “substantial depravation” appears as huge in its implications and therefore does not imply the same degree of severity in the characterization of a situation of indirect taking. Moreover, the interpretation of a given concept may vary from case to case as it is demonstrated by the different meanings attributed to the notion of “substantial depravation”. [...]
[...] In the CMS v. The Argentine Republic case, the tribunal had to determine whether an indirect taking could be imputed to the Argentinean Republic. The tribunal arrived at the conclusion that the latter did not breach its obligations as mentioned in article IV of the U.S.-Argentina BIT as it did not violate the “substantial deprivation” standard which implies a violation of the “fundamental right of ownership”. In its reasoning, the tribunal referred to previous case law existing on the subject. [...]
[...] Indeed, the concept of indirect taking itself lacks of a clear definition. Instead, it appears as a concept having a variable geometry. Contrary to the characterisation of a situation of direct expropriation which is relatively easy and straightforward nationalization of an investment), the characterisation of a situation of indirect taking appears as a much more complex operation. While determining whether a situation can fall within the category of indirect taking, tribunals undertake a case by case study and seem to refer to a myriad of criteria. [...]
[...] D. Sloane, Indirect Expropriation and its valuation in the BIT Generation Br. Yrbk Int'l L G. Greenfield, The NAFTA Ruling on Metalclad v. Mexico V. Been, Does an International Regulatory Takings doctrine make sense? NYU Environmental L. J (2002) T.W. Merrill, Incomplete Compensation for Takings NYU Environmental L. J (2002) Text of NAFTA, Chapter 11 (1994) US-Chile Free Trade Agreement, Article 10 (2003) Draft ABA Recommendation Penn Central v. [...]
[...] Taking into account this criteria, tribunals may refuse to require compensation when the governmental action does not remove all or most of the property's economic value Pope & Talbot case, in which the tribunal found that although the introduction of export quotas resulted in the reduction of profits for Pope & Talbot, sales abroad were not totally compromised and the investor was still able to make profits). ii) the interference of the measure with reasonable expectations notion of denial of enjoyment of an investment reasonably expected economic benefits as developed in the CMS case). iii) the context of the governmental measures and change of the initial conditions. These criteria are far from being exhaustive and will certainly evolve and grow with caselaw. Moreover, it must be underlined that these criteria are elaborated on the basis of investment treaties whose content may vary in a great extent. [...]
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