Case Report (free download)
Case Report by Harry Skinner, Editor Ignacio Torterola
Claimant brought a jurisdictional challenge to an arbitral award made by a Tribunal seated in London pursuant to a bilateral investment treaty ("BIT") between Poland, Belgium and Luxembourg wherein the Tribunal found that it lacked jurisdiction to consider whether certain measures by the Polish government constituted expropriation or measures similar to expropriation, particularly, "creeping expropriation." It was held that the Tribunal did have jurisdiction to consider whether measures short of expropriation could lead to consequences similar to expropriation in the aggregate based on the wording of Article 9(2) of the BIT and the reality of how creeping expropriation occurs. Creeping expropriation may be found to have occurred even where the act at the end of the chain is, or is argued to be, a specific act of direct expropriation. The Court further held that it is inappropriate for Tribunals to make definitive findings on which acts constitute which type of expropriation at the jurisdictional stage where such findings would preclude a consideration of all facts at the merits stage.
Expropriation, Indirect expropriation, Creeping expropriation, Fair and Equitable Treatment
Case report provided by International Arbitration Case Law (IACL)
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