ESPROPRIAZIONE E LA TUTELA DEGLI INVESTITORI STRANIERI

The analysis aims to portray a general understanding over the concept of expropriation, with a focus on the investor’s protection system against regulatory states’ actions. An examination of the case law scenery will be offered to the reader in order to highlight legal scenarios helpful to define what expropriation and its impacts upon the relationship between states and foreign investors really are within the international investment law landscape. It is therefore essential to begin with a preliminary analysis of the legal framework surrounding the concept of expropriation which is characterized by the field of international investment law. The reader will be offered an overall overview upon the historic evolution of such a branch of law, together with a brief outlook on the positive impacts of foreign direct investments in domestic economic regimes. Furthermore, the study will delve into the major features and criticisms of how foreign investors are safeguarded from an international investment perspective. Specifically, three major aspects will be discussed, involving the balancing factors between the investor protection and the sovereign regulatory role of the host state, the treaty protection system for foreign investors and the possibility to embrace the chance to be in an insurance contract to prevent possible damages occurring due to the host state’s practice. It will be then necessary to focus on the two primary pillars involved in such a preliminary stage of the analysis: the definitions of investor and investment. The concept of ‘investor’ will be discussed with its major issue of foreign investor’s nationality, while the attempted definition of ‘investment’ will be framed within the ICSID Convention and BITs’ realm. At this stage of the work, the reader should be able to properly face the topic of expropriation thanks to the explanation of all the aforementioned academic tools. The forthcoming part will discuss the peculiarities of expropriatory measures in international investment law, delving in a first instance with the treaty conditions of legality and subsequently with the main categories of expropriation. As a matter of fact, after portraying the four criteria adopted as boundary lines to define the lawfulness of expropriation in international investment law disputes (namely, public interest, non-discrimination, due process and compensation), the categorization of the different types of expropriatory measures will be structured as following. A first analysis will be made concerning the differences between direct and indirect expropriation. Then, the study will provide deeper insights within each of the two types of expropriation. After the reader has coped with all the needed means to generally comprehend the domain of expropriation in international investment law, the analysis will conclude with a brief overview upon a groundbreaking case in the international law scenery, Certain Iranian Assets, together with some possible unsolved issues for future disputes arisen from its recent judgement.