ABSTRACT
The concept of expropriation and the underlying principles of the standards of expropriation have been the subject of much deliberation in investor-state dispute settlement (ISDS) jurisprudence. However, one topic that has not been addressed is the role of domestic courts in the context of ISDS – and more particularly, the judicial expropriation of arbitral awards. To that extent, this chapter examines the proposition as to whether arbitral awards qualify as investments within the ISDS framework. Further, a central question that the chapter explores is what qualifies as expropriation of an arbitral award. Additionally, the chapter focuses on whether interference by the host state judiciary in enforcement of the arbitral award can qualify as expropriation. The chapter commences by ascertaining whether arbitral awards qualify as investments within the ISDS regime. Thereafter, it examines the practice of expropriation in ISDS and the principles related to the same. It then outlines the factual matrix of specific cases while highlighting the general principles and factors contributing to expropriation in international arbitration. Notably, the chapter examines Saipem v Bangladesh, ATA v Jordan, Swisslion v Macedonia, Tatneft v Ukraine, Middle East Cement v Egypt and the recent case of Devas Multimedia Private Limited v Antrix Corporation Limited to examine the factual scenarios that might be interpreted as judicial expropriation and to outline the relevant underpinnings of judicial expropriation.
