Authors: Thomas Nektarios Papanastasiou
Addresses: Graduate School of Asian Pacific Studies, Waseda University, 1-21-1, Nishi-Waseda, Shinjuku-ku, Tokyo 169-0051, Japan
Abstract: Expropriation is the most traditional type of political risk. However, there is no consistency in the protection against expropriation according to international jurisprudence. This paper analyses what constitutes expropriation and the conditions of non-compensable takings, as well as examining what international tribunals require in order to accept a claim of expropriation. Moreover, the paper highlights the evolved role of the FET standard in successfully supporting claims that under expropriation, clauses are likely to be rejected. As case study, this paper analyses recent EPAs (2006-2009) entered into force between Japan and five ASEAN member-countries. It develops quantitative measures (a score card) to provide several snapshots of key legal elements for the protection of foreign investments in the power sector in each of the countries. In comparing the five EPAs, it is found that the power sector is reserved to a different extent with regards to expropriation and FET standards.
Keywords: international law; international investments; investment laws; FET standards; fair treatment; equitable treatment; expropriation claims; political risk; infrastructure investments; Japan; foreign investments; international jurisprudence; legal protection; non-compensable takings; international tribunals; rejected clauses; economic partnership agreements; EPAs; ASEAN; Association of Southeast Asian Nations; Indonesia; Malaysia; Philippines; Thailand; Vietnam; quantitative measures; score cards; legal elements; power sector; power plants; electricity generation; energy industry; public law; public policy.
International Journal of Public Law and Policy, 2011 Vol.1 No.2, pp.171 - 201
Received: 08 May 2021
Accepted: 12 May 2021
Published online: 20 Sep 2011 *