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Expropriation in International Investment Law

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Earlier, issues were related to nationalization and now they are related to foreign investment regulation and indirect expropriation. In the light of new disputes surfaced regarding indirect expropriation, it has become crucial to define expropriation which in itself has become an issue in international investment law. Before discussing at length on expropriation in international investment law, there is a need to define the scope of the word expropriation in the current scenario. According to Newcombe (2005, pp. 17-18), there has been a traditional approach widespread in the investment treaty practice of defining expropriation. So far out of the 2200 investment treaties made, expropriation is not taken as appropriation or unjust wealth gaining by the state. Nowhere the meaning of the term expropriation is defined. it refers and points out just the government steps that are deemed equal to expropriation. They refer to it as tantamount to expropriation. Tribunals in NAFTA Article 1110 on the Popeamp. Talbot v. Canada and S.D. Myers have mentioned the phrase measure tantamount to nationalization or expropriation. It takes the word in its ordinary scope, i.e. tantamount signifies equivalent without taking any larger concept on expropriation. The notion of expropriation is related widely with investment and property. It is managed according to international investment agreements. A broad definition of the investment may include licenses, IP, and other government concessions in contracts. Indirect – sometimes taken as regulatory takings. However, according to Prof Sornarajah, indirect is similar to direct in the matter of effects but does not essentially result in the physical take over of the property.