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Eclipse Of Expropriation?

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Chapter Summary

This chapter describes that expropriation has been eclipsed by the standard of fair and equitable treatment. However, the various reasons that have been proposed to explain the eclipse of expropriation and the embrace of the fair and equitable treatment standard are not entirely convincing. Mere difficulty in distinguishing between expropriation and fair and equitable treatment is not sufficient reason to award equal compensation for breaches of either standard, nor is it sufficient to justify the eclipse of expropriation. The eclipse of expropriation also raises problems in secondary markets that rely on the findings of international investment law. In sum, it would appear that the eclipse of expropriation by fair and equitable treatment may have some costs for an efficient international investment law whose goals must include both encouraging private investment to facilitate economic development while not unduly infringing the autonomy and regulatory authority of the host State.

Keywords: autonomy; expropriation; host State; international investment law; regulatory authority



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