I. Dilemma II. Case study Phillip Morris v Uruguay III. Lessons
1 IDEA Regulation may result in expropriation when exercise of police powers fails to meet certain requirements. 2 I. Dilemma
A. State power to regulate B. Right to protection from arbitrary measures Crux: where is the appropriate middle? Scalia: Challenge of articulating regulatory purposes is so great that the use of such criteria (sic): amounts to a test of whether the legislature has stupid staff. (Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, p 2898 (1992)) 3
I. Dilemma C. Cases Substantial deprivation
Legitimate expectations Appropriation, not only deprivation 4 II. Case study
Phillip Morris v Uruguay ((ICSID Case ARB/10/7) Facts Issue 5
6 7 With 80/80 regulation 8 9 10
11 Decision: Challenged Measures by Uruguay was a valid exercise of the States police powers (para 287) the effects of the SPR were far from depriving of the value of its business or even causing a substantial deprivation of the value (para 284) there is not even a prima facie case of indirect expropriation by the 80/80 Regulation. (para 276) indirect expropriation, as long as sufficient value remains
after the Challenged Measures are implemented, there is no expropriation. (para 286) 12 Holding: principle that the States reasonable bona fide exercise of police powers in such matters as the maintenance of public order, health or morality, excludes compensation even when it causes economic damage to an investor and that the measures taken for that purpose should not be considered as expropriatory (para 295)
Other cases: Tecmed v Mexico: The principle that the States exercise of its sovereign power within the framework of its police power may cause economic damage to those subject to its powers as administrator without entitling them to any compensation whatsoever is undisputable. 15
Bischoff: [c]ertainly during an epidemic of an infectious disease there can be no liability for the reasonable exercise of police powers. 16 Saluka v Czech Republic: It is now established in international law that States are not liable to pay compensation to a foreign investor when, in the
normal exercise of their regulatory powers, they adopt in a nondiscriminatory manner bona fide regulations that are aimed to the general welfare. [T]he principle that the State adopts general regulations that are commonly accepted as within the police power of States forms part of customary international law today. 17 Methanex v United States: [A]s a matter of general international law, a non-discriminatory
regulation for a public purpose, which is enacted in accordance with due process and, which affects, inter alios, a foreign investor or investment is not deemed expropriatory 18 Chemtura v Canada: Irrespective of the existence of a contractual deprivation, the Tribunal considers in any event that the measures challenged by the Claimant constituted a valid exercise of
the Respondent's police powers. As discussed in detail in connection with Article 1105 of NAFTA, the PMRA took measures within its mandate, in a non-discriminatory manner, motivated by the increasing awareness of the dangers presented by lindane for human health and the environment. A measure adopted under such circumstances is a valid exercise of the State's police powers and, as a result, does not constitute an expropriation.
19 Other Sources: 20 Harvard 1961 Draft Convention on the International Responsibility of States for Injury to Aliens
An uncompensated taking of property of an alien or a deprivation of the use or enjoyment of property of an alien which results from the action of the competent authorities of the State in the maintenance of public order, health, or morality shall not be considered wrongful, provided (a) it is not a clear and discriminatory violation of the law of the State concerned; (b)
it is not the result of a violation of any provision of Article 6 to 8 of this Convention [denial of justice]; (c) it is not an unreasonable departure from the principles of justice recognized by the principal legal systems of the world; and (d)
it is not an abuse of the powers specified in this paragraph for the purpose of depriving an alien of his property. . 21 Convention Establishing the Multilateral Investment Guarantee Agency (art 11(a)(ii)): expropriation : any legislative or administrative action or omission attributable to the host government which has the effect of
depriving the holder of a guarantee of his ownership or control of, or a substantial benefit from, his investment. exceptions: non-discriminatory measures of general application which governments normally take for the purpose of regulating economic activity in their territories. 22 Other Sources:
EU-Canada CETA (Comprehensive Economic Trade Agreement) For greater certainty, except in the rare circumstance when the impact of a measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objective, such as health, safety and the environment, do not constitute indirect expropriations. 23
Bahrain-US BIT (art 3): Neither Party shall expropriate or nationalize a covered investment either directly or indirectly through measures tantamount to expropriation or nationalization ("expropriation") except for a public purpose; in a non-discriminatory manner; upon payment of prompt, adequate and effective compensation; and in accordance with due process of law and the general principles of treatment provided for in Article 2, paragraph 3. 24 Bahrain-US BIT (art 3.1):
Neither Party shall expropriate or nationalize a covered investment either directly or indirectly through measures tantamount to expropriation or nationalization ("expropriation") except for a public purpose; in a non-discriminatory manner; upon payment of prompt, adequate and effective compensation; and in accordance with due process of law and the general principles of treatment provided for in Article 2, paragraph 3. 25 Bahrain-UK BIT (art 5.1): Investments shall not be nationalised, expropriated or subjected to
measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as "expropriation ") except for a public purpose related to the internal needs of that Party on a non-discriminatory basis and against prompt, adequate and effective compensation. 26 Bahrain-Germany BIT (art 4.2): Investments by nationals or companies of either Contracting State shall not be expropriated, nationalized or subjected to any other measure the effects of which would be tantamount to expropriation
or nationalization in the territory of the other Contracting State except for the public benefit and against compensation... 27 Bahrain-Netherlands BIT (art 6): Neither Contracting Party shall take any measures depriving, directly or indirectly, nationals of the other Contracting Party of their investments unless the following conditions are complied with: a) the measures are taken in the public interest and under due
process of law; b) the measures are not discriminatory or contrary to any undertaking which the Contracting Party which takes such measures may have given; c) the measures are taken against just compensation. ...
28 III. Lessons A. Power to regulate start of analysis B. Deference C.
Goal: discerning cover purposes (e.g., protectionism) Example: S.D. Myers Inc. v. Canada (Partial Award, 13 November 2000) restriction was revealed not to be motivated by environmental concerns, but rather a stratagem to protect national business interests. 29 III. Lessons
D. Elements 1. Bona fide or legitimate 2. Aimed at public purpose 3. Proportional
4. Non-discriminatory 30 Conclusion Regulation may result in expropriation when exercise of police powers fails to meet certain requirements. Test is substantial deprivation and often
appropriation. Bona fide (legitimate), proportionate, nondiscriminatory, regulation aimed at public concern is deferred to. 31
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