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The Investor-state disputes and litigation relating to takings

  • Public Land Law Review
  • Abbr : KPLLR
  • 2013, 62(), pp.157-174
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

JEONG, HA MYOUNG 1

1경북대학교

Accredited

ABSTRACT

The protection of an alien’s property in a host country against direct expropriation has long existed in the international law, such physical takings are no longer common practice, however. The form of “indirect expropriation” is much more common in the international disputes: the measures taken by host governments which interfere with the right to the investments or diminish the value of the investments of foreign investors. The phenomenon of indirect expropriation got a fame in the international context with the BIT-like provisions of the North American Free Trade Agreement (NAFTA) of 1993. Foreign investors began to rely on these provisions to file high-profile lawsuits against the governments on grounds of indirect expropriation. Kor-US FTA also has the same indirect expropriation provision and investor-state dispute provisions to protect the investment from host government's illegal regulation. The Korean judiciary and government already recognized the concepts of indirect expropriation and investor-state disputes in the specific cases and enactments. It is time to reconsider Korean public takings claim and American regulatory takings claim to understand the realities of indirect expropriation of FTA and to cope with. indirect expropriation claims.

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