100%(7)7 out of 7 people found this document helpful
This preview shows page 60 - 61 out of 80 pages.
be valid. Although this may be clear in the case of a conclusive municipal law transferring ownership, it can be done constructively through indirect acts of State that amount to an expropriation of the property - Starrett Housing Corp v Irani.Objective Theory - whether expropriation has occurred is determined by the objective effects of the state action, not the intent of the state itself in taking those acts - Tippetts v TAMS-ATTAii.Loss of Property Rights - a constructive expropriation is effected when the acts of the state amount to the loss of all control and rights of property ownership. This may be through the physical seizure of land, transfer under duress, or confiscatory taxation - Starrettiii.Mere Regulation not Expropriation - merely regulating the nature of the operation or exercise of property rights will not usually amount to expropriation. Only when regulation is to such an extent that it fully deprives the foreign owner of all effective control will regulation amount to expropriation - Starrettiv.Interference - when the ability to exercise rights of property ownership are impaired by the acts of a state, it will depend on the extent and length of those restrictions as to whether expropriation as occurred - 1961 Harvard Draft Articles, Art 10 b.Treaty Obligation - expropriation that is contrary to a discrete treaty obligation is a clearly gives rise to state responsibility - Chorzow Factory Case (Merits)c.Expropriation cannot be Discriminatory - when a policy of nationalisation is implemented, it cannot be enforced in a manner that discriminates arbitrarily between foreign interests based on the nationality of those foreign interests, without reasonable justification - Amoco International Finance v Iran(Iran, just lawfully, only expropriated US, not Jap, interests)d.Expropriation for Public Purposes Requirement - expropriation or nationalisation must be carried out for a 'public purpose' in order to be lawful at international law - must some public utility to the act of expropriation -Amoco Casei.'Public Purpose' - what constitutes a public purpose is widely interpretedand subject to no definitive statement - largely left to the discretion of individual statesto determine their own public purposes - Amoco Caseii.Not a 'Public Purpose' - it is nonetheless clear that a number of reasons of expropriation are not for a public purpose: - Amoco Case1.Avoid Contractual Obligations - expropriation by a state purely for the purpose of avoiding its contractual obligations is NOT a public purpose.2.Financial Purposes - expropriation purely for financial purposes is generally NOT a public purpose. However, the right of states to nationalise an industry to ensure a greater share of profits of that industry is recognised as generally lawful in state practice.