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Fair And Equitable Treatment: Fairly And Equitably Applied In Lieu Of Unlawful Indirect Expropriation?

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Chapter Summary

Virtually all bilateral investment treaties (BITs) provide protection from indirect or regulatory expropriation by prohibiting expropriation "indirectly through measures tantamount to expropriation and nationalization". This chapter focuses on seven recent investment treaty cases-CMS, LG&p;E, Enron, Sempra, Azurix, Saluka, and PSEG-where the claimants have alleged both indirect expropriation and violations of the fair and equitable treatment standard and have succeeded only with respect to the latter claim. Four of the seven cases discussed in the chapter relate to actions taken by the Argentine government against companies in the energy sector in the course of its most recent economic crisis, and these cases may be particularly relevant for the remaining 20-plus ICSID cases pending against Argentina. It briefly refers to decisions under political risk insurance (PRI) policies covering expropriation.

Keywords:Argentina; Azurix; bilateral investment treaties (BITs); equitable treatment; ICSID; indirect expropriation; investment treaty cases; political risk insurance (PRI) policies; regulatory expropriation; Sempra



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