Browsing by Author "Mseteka, Penjani Joy"

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    The elusive quest for consensus on the scope and regulation of indirect expropriation
    (University of the Witwatersrand, Johannesburg, 2023-02) Mseteka, Penjani Joy
    Over the years, jurists, scholars, and professionals in the international investment law field have grappled with the issue of a lack of unified definition, scope, and regulatory framework for indirect expropriation. This paper aims to show that the international community has reached consensus on the broad definition of indirect expropriation but lacks clarity on the minutiae, scope, and regulation of indirect expropriation. Through an exploration of tribunal awards, academic articles, customary international law, treaties and other international documents, this paper will highlight the various attempts at creating tests to identify indirect expropriation. This paper also considers how tribunals have treated the numerous approaches to indirect expropriation and examines attempts to codify indirect expropriation approaches through treaties, bilateral investment treaties and international documents. The paper further acknowledges the strengths and weaknesses of the sole effects, police powers and proportionality approaches to indirect expropriation. Ultimately, the paper proposes a modified substantive deprivation and legitimate expectation test to regulate the determination of indirect expropriation. The paper concludes that whilst there is no universal framework of indirect expropriation, there isconsensus on the broad definition of indirect expropriation and distinct schools of thought on approaches to determine indirect expropriation. Through an exploration of the academic articles, arbitration awards, BITs, conventions, and draft conventions, it will be shown that there are a multitude of materially similar theories on the classification of indirect expropriation. Whilst there are several tests to determine whether indirectexpropriation has occurred, there is no singular, universal test to assess or determine whether indirect expropriation has occurred, particularly in comparison to regulatory government actions.