Defining Indirect Expropriation: The Transatlantic Trade and Investment Partnership and the (Elusive) Search for ‘Greater Certainty’

Abstract:

The article assesses the definition of indirect expropriation included in the recent European Union (EU) proposal within the context of the Transatlantic Trade and Investment Partnership (TTIP) negotiation. The article argues that, while the EU proposal is likely to have narrowed the scope of the concept of indirect expropriation, in terms of providing ‘greater certainty’, we are not there yet. Like similar attempts before it, the EU proposal refers to a variety of different legal approaches without sufficiently clarifying their content and relationship. While this lack of clarity emphasizes the indecision among policy makers, including the EU, about where to draw the line between an indirect expropriation and a legitimate regulatory measure, it ultimately suggests that there are still doubts about the proper function of international investment law.