The law and politics of indirect expropriation: the legacy of American legal realism for contemporary international investment law

Akbar Rasulov

Chapter 22 in Research Handbook on Law and Political Economy, 2025, pp 370-400 from Edward Elgar Publishing

Abstract: The subject of indirect expropriation represents one of the most important political questions in contemporary international investment law. Where exactly you stand on it can tell an informed observer a lot more about what you actually think about social democracy and free market fundamentalism – and the role that international law is meant to play in promoting them – than any other question in contemporary investment law doctrine, just like where you stand on the principle of fair and equitable treatment will tell them a lot more about your attitude towards neo-colonialism and third-world sovereignty than you probably suspect. On its surface, the basic idea seems rather simple. Whenever the host state's government impairs or restricts the ability of a foreign investor to enjoy its property howsoever it pleases, even where such actions do not amount to an outright seizure of assets, an act of expropriation is said to take place. Since all modern investment treaties prohibit expropriation, the inevitable next step, in legal terms, is to decide on the resulting extent of state responsibility on the part of the host state, which in the contemporary investment law almost invariably means the payment of compensation.

Keywords: International investment law; Indirect expropriation; Regulatory takings; Legal realism; American legal realism (search for similar items in EconPapers)
Date: 2025
ISBN: 9781803921181
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