Earticle

초록

영어

This article explores the development of the international law on expropriation. The concept of expropriation under international law is difficult to determine. One factor that reinforces this difficulty is that the expropriation provisions in different treaties vary in specific wordings. However, there certainly are discernible substantive principles that penetrate through the expropriation provisions of international investment agreements. Under international law, the States have the right to expropriate properties within each of their jurisdictions, subject to certain conditions requiring that the States expropriate for public purposes, in non-discriminatory manners, on payment of compensations, and (though it is not as general as the foregoing three conditions) in accordance with due process of law. Having fulfilled these conditions, an expropriation would qualify as a lawful expropriation. The present-day discussion on unlawful expropriation mostly concerns indirect expropriation. As a concept distinct from direct expropriation, indirect expropriation is ‘deprivation of property through interference by a State in the use of that property or with the enjoyment of its benefits even where legal title to the property is not affected’.(Tippetts, Abbett, McCarthy, Stratton and TAMS-AFFA Consulting Engineers of Iran v. Iran) As indirect expropriation usually takes the form of regulatory measures of States which in many cases are not accompanied by compensation as required under international investment agreements, it would amount to unlawful expropriation. What draws a line between a legitimate regulation and an indirect expropriation is a contested issue and one of the factors that complicates the law on expropriation. Arbitral tribunals have employed criteria such as the degree of interference or the economic impact of the measures, its character or intent, and the legitimate expectations of the investor. Each of these criteria will be studied in this article, along with the concept of proportionality that operates to weigh and balance the criteria in a particular case.

목차

Ⅰ. 외국인 재산의 수용에 관한 국제규범의 발전
 Ⅱ. 적법한 수용
 Ⅲ. 간접수용
 Ⅳ. 수용과 과세
 Ⅴ. 보상의 기준
 Ⅵ. 결론
 

키워드

저자

• 유희진 [ Yoo, Hee Jin | 고려대학교 법학연구원 연구원. 고려대학교 일반대학원 박사과정. ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  국제경제법연구 [Korean Journal of International Economic Law]

• 간기

  연3회

• pISSN

  2005-9949

• 수록기간

  2003~2020

• 등재여부

  KCI 등재

• 십진분류

  KDC 361 DDC 341