Regulatory expropriation is a subcategory of indirect expropriation, not defined as such in investment treaties. It occurs “when host States invoke their legislative and regulatory powers to enact measures that reduce the benefits investors derive from their investments but without actually changing or cancelling investors’ legal title to their assets or diminishing their control over them.”1
II. Treaty practice
Virtually all investment treaties include a distinction between direct and indirect expropriation, with expressions such as “or equivalent measures”, “or measures with similar/equivalent effects”, “or measures tantamount to”.2 However, these references were insufficient to ascertain whether a regulatory (indirect) expropriation had in fact taken place.
In early 2000s investment treaties introduced definitions of in, as well as carve-outs and explanatory notes, exempting certain regulatory measures from its scope.3 The definition cover measures having an effect equivalent to , which substantially deprive the investor of the fundamental attributes of property in its investment, including the right to use, enjoy and dispose of its investment, without formal transfer of title or outright seizure.4
III. Difference between direct and indirect expropriation
In the case of indirect expropriation States do not expressly remove or shift investor’s legal title over the investment. However, like direct expropriation regulatory (indirect) expropriation is prohibited in virtually all investment agreements, unless adopted for public purpose, in a non-discriminatory manner, following due process, and against payment of compensation for the value of the property.
IV. Scope and extent
Regulatory measures fall within the scope of regulation of expropriation provisions, as such their effects and characteristics ought to be assessed by tribunals.5 Measures potentially expropriatory range from the ban or handling of certain hazardous materials,6 cancellation of licences and permits;7 interference with contractual rights (in the exercise of governmental capacity);8 re-zoning of areas originally granted to develop the investment project;9 taxation measures;10 etc.
Often States implement such regulations to protect or promote public welfare objectives. This situation begs the question where the line between non-compensable legitimate regulation and compensable indirect expropriation lies.11 In finding these contours, investment tribunals have adopted a case-by-case factual approach.12
Ethyl Corporation v. The Government of Canada, Award on Jurisdiction, 24 June 1998, para. 5; Crompton (Chemtura) Corp. v. Government of Canada, PCA Case No. 2008-01, Award, 2 August 2010, paras. 12; Methanex Corporation v. United States of America, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005, para. 1; S.D. Myers, Inc. v. Government of Canada, Partial Award (Merits), 13 November 2000, para. 100.
Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award, 30 August 2000, para. 1; Técnicas Medioambientales Tecmed, S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/2, Award, 29 May 2003, para. 39; ADC Affiliate Limited and ADC & ADMC Management Limited v. Republic of Hungary, ICSID Case No. ARB/03/16, Award, 2 October 2006, para. 218.
Comprehensive Economic and Trade Agreement between Canada and the European Union, 30 October 2016, Annex 8-A. 2; Saluka Investments BV v. The Czech Republic, PCA Case No. 2001-04, Partial Award, 17 March 2006, para. 264; Christie, G.C., What Constitutes a Taking of Property under International Law, The British Yearbook of International Law 38, 1962, p. 338.
S.D. Myers, Inc. v. Government of Canada, Partial Award (Merits), 13 November 2000, para. 283; Burlington Resources, Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Liability, 14 December 2012, para. 506; LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability, 3 October 2006, para. 193.
V. State's right to regulate: Effect or purpose
An effects-only approach to ascertain regulatory expropriation no longer finds support in international investment law. Newer investment treaties contemplate three factors to determine if a regulatory measure equates an expropriation:
Newcombe, A., The boundaries of regulatory expropriation in international law, in Kahn, P. and Wälde, T. W. (eds.), New Aspects of International Investment Law, Martinus Nijhoff Publishers, 2007.
VI. The Police Power: A carve-out from expropriation provisions
States’ rights to regulate over specific public welfare objectives such as the environment, public health and safety is expressly carved-out from the provisions on expropriation. In other words, except in rare circumstances (e.g. lack of proportionality), non-discriminatory regulatory measures applied to protect legitimate objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.26 This doctrine has been identified as a rule of customary international law, relevant in the interpretation of expropriation provisions included in older generations of investment agreements.27
Methanex Corporation v. United States of America, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005, Part IV, Chapter D, para. 7; Crompton (Chemtura) Corp. v. Government of Canada, PCA Case No. 2008-01, Award, 2 August 2010, paras. 265 - 267; Burlington Resources, Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Liability, 14 December 2012, para. 471.