207 See generally Ratner, Regulatory Takings, supra note 140; see also Electrabel v. Hungary, case ICSID no ARB/07/19, para. 6.62 (25.11.2015) (“for direct and indirect expropriation … the requirement of international law is that the investor justify the substantial, radical, serious, devastating or fundamental deprivation of his rights or virtual destruction, effective neutralization or de facto destruction of his investment, value or enjoyment.” 61 ICSID-Fall No. ARB/03/16, Point. 426-44, 481, 483-99 (October 2, 2006) (an “illegal expropriation” was found in bit violation, the Chorzw plant applied and damages are calculated on the basis of the FVDA [hereafter referred to as ADC]. Regarding the difference between the price of using the FVDA, see Valasek, supra note 23. 103 The AI`s requirement that the state expropriate it discourages private ownership in the first place, just as the absence of such a requirement of bona fide rules of an unseended nature indicates that such measures are permitted (although the risk of violation of the FET may affect this signal). 81 Sornorajah, Muthucumaraswamy, The International Law on Foreign Investment 406-10 (3d ed.
2010). See also Crawford, James, Brownlie`s Principles of Public International Law 624-25 (8th edition 2012) (most expropriations find “only illegal… compensation is not provided” but some (for example. B discriminatory measures) are in themselves illegal, but are then rebudged by the FONDS, notes 26 above, from an economically erroneous point of view on the calculations of damages. 131 For comments that refer to these findings in the international investment context, see Sykes, Alan O., Economic “Necessity” in International Law , 109 AJIL 296, 321 (2015) (propose lower compensation for dispossessed investors to avoid overinvestment in the host state); Wells, supra note 108, at 478-81. 33 A few years later, the court made some reference to the distinction and found that even legal expropriations required full payment, while illegal expropriations may require either a refund or a payment for “any capital gain on the property between the date of the assumption and the date of the [price]”. Phillips Petroleum Co. Iran v. Islamic Rep. of Iran, Case No 39, 21 Iran-U.S. Trib claims.
Rep. 79, 122, z. 110 (June 29, 1989). 101 I do not assume that compensation paid in the context of a contract-compliant expropriation, i.e. the FVDE, will eliminate the harm suffered by the investor, since the investor can assess the investment more than the FVDE. For much of the last century, global players have made savings on international legislation governing the compensation that a state would have to pay to a foreign investor if it expropriated its assets. Competing claims had many dimensions, including the content of customary international law and the boundary between good faith rules and expropriations. In the modern era of international investment agreements (IAAs), a debate continues on another central issue: if a state expropriates a foreign investment that violates an I2, where should a court seek the standard of compensation – an amount that the treaty requires of the state when it is expropriated, or according to an external standard for violations of international law in general? Each of them is tempting for a court for its legal visibility – a court that is set out with precision in the text to be examined and a court stemming from a venerable international judicial process. But they can indicate markedly different results for the investor and the host state. And the state courts of investors remain extremely inconsistent, even inconsistent, in their choice and application of these standards.