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Two related historical facts welcomed liberal democracy or the liberal-democratic state. On one hand, in the seventeenth and eighteenth centuries, social contract theory imposed a major setback to the divine legitimacy of political rulers. On the other hand, the capitalist revolution–embracing the mercantile, the industrial, and the liberal revolutions–changed the basic way of appropriating the economic surplus. This no longer depended on the state’s control but increasingly depended on the realization of profits in the market. For the first time in history, authoritarian regimes ceased to be a necessary condition for the ruling classes’ survival. Democracy turned gradually into synonym of the good state. Eventually, with the acknowledgement of political rights–specifically of universal suffrage––liberal democracy emerged. This process took one century–the time for the bourgeois ruling class to stop fearing expropriation by the poor who democracy entitled to vote.

This chapter examines the principles of compensation for expropriation through a comparison of investment arbitration and other legal systems. It discusses the treatment of compensation for expropriation in arbitration under investment treaties, including the treatments of lawful and unlawful expropriation, fair market value, the date of valuation, and moral damages for expropriation. As there remain a number of issues related to these various aspects of compensation, which are recent and unsettled in investment arbitration, comparison is drawn to the treatment of compensation for expropriation in various other legal systems. Specifically, international human rights law as applied by the European and Inter-American Courts of Human Rights and the domestic expropriation laws of the United States, Germany, and France are examined to outline general principles that can be utilized in investment arbitration.

This chapter reviews property law theory and its literature that aims to show how developments in general property theory may be relevant for energy and natural resources. It focuses on liberal Western understandings of property, and primarily those within the common law tradition. The chapter is organized as follows. Section I takes a broad look at the literature addressing the question of ‘what is property?’ and the issues raised by that question. It discusses a number of conceptualist and instrumentalist approaches to the matter of definition, looks briefly at the issue of commodification, and examines the literature on the categories of property. It concludes with a consideration of the numerous clauses principle. Section II addresses the problem of justifying property, or at least private property. It outlines the various explanations, dividing them into four types: the labour, desert, first possession (or occupation), and economic theories; personhood theories; liberty-based theories; and pluralist theories. It then looks at explanations for the movement of property from one category to another. The section concludes with a study of the justifications for (private) property as applied to the issue of expropriation.

The previous discussion on forests and minerals showed that Russian professional and industrial elites were quite unhappy with the state's passivity and its reluctance to take on the management of common resources. The government explained its withdrawal from this sphere as an expression of its allegiance to the principle of private property. This chapter analyzes how the Russian state used its power to regulate the use of one publicly important resource—rivers, which had been rendered into the private ownership of nobles by Catherine the Great's manifesto of 1782. A comparison of the treatment of rivers with other spheres of expropriation, across diverse geographical areas, including the Russian southern colonies, will show when and why the state was eager to seize private properties, when it refused to do so, and why.

Starts with a historical analysis of China’s land property structure and its weaknesses. It is argued that the former production team exercised no real power over land, even though it enjoyed formal land ownership. Instead, control over land ownership resided with the commune and the local state. This has resulted in frequent illegal land expropriation, the neglect of customary rights, and the failure to register land. Through an analysis of a unique set of court cases it is shown how this historical background is the source for many land disputes between the state and the collective.

This chapter argues that the relationship between ECtHR case law relating to protection of property rights and the traditional principles of international law on foreign investments swings between a tendency to apply these principles, adapting them to the frame of reference of the Convention, and a tendency to overcome them. The first trend displays itself when the rights of property come to the fore viewed as purely economic rights. It concerns the notion of property itself, the ‘corporate veil’ principle, and the determination of the amount of compensation to be awarded in cases of expropriation. The second trend can be found when violations of other protected rights of considerable social (non-economic) interest come to the fore, together with interferences with the right of property. In such cases, the Court has tended both to extend the concept of property and to judge disproportionate these interferences in the light of the social relevance of the individual interests at stake.

This chapter recalls that the inter-American system of human rights protects property as an individual right. However, the system is not the forum to protect business activity against arbitrary acts of the State. The practice of the Commission and the Court resists mixing wholly economic interests with human rights protection, even if property is involved in the conflict. The inter-American case law contains some solutions for conflicts of law. In cases of conflict between indigenous property and private property, the Court's jurisprudence suggests that human rights prevail over economic rights. Indigenous property is fully protected because it has a function that goes beyond pure economics. In contrast, the protection of other forms of private property is limited to compensation for expropriation. In principle, human rights must always prevail over rights related to international business. The payment of adequate compensation is the solution to meet investments commitments incompatible with human rights obligations.

This chapter explores the possibility of applying the proportionality principle, which is currently used by the ECtHR in its jurisprudence, in investor-state arbitration and, particularly, in expropriation-related claims. It argues that when States' obligations flowing from international investment treaties and human rights law come into tension, the application of the ‘proportionality test’ in the course of investor-state arbitration concerning expropriation may represent one of the routes through which a balancing of human rights protection imperatives and investor interests can take place. The complexity of this interplay relates to the fact that interests on both sides of the balance have human rights aspects. By virtue of ‘double proportionality’ testing, investor-state arbitration practice may be merging investment and human rights law proportionality standards — a development that is to be encouraged.

This chapter explores the linkage between investment law and international instruments protecting public health, focussing on the specific issue of tobacco control. Since the recent inception of the WHO Framework Convention on Tobacco Control, which has established cognitive and normative consensus for promoting global public health through tobacco control, states have gradually adopted a series of measures to comply with this convention. However, international investment governance risks undermining the goal of tobacco control, for example by facilitating access to tobacco products, increasing competition, and lowering tobacco prices. After analysing the relevant legal framework, this chapter explores the potential conflict areas between investment governance and tobacco regulation, and proposes some legal tools that might help reconciling the interests at stake. In particular, it proposes recourse to customary rules of treaty interpretation.

In contemporary international law, the tension between the public interest in safeguarding cultural heritage and private property rights — including investors' rights — is often hard to settle, as full realization of one of them may inescapably lead to sacrificing the other. Although this tension is resolved by domestic legislations through solutions that are sometimes quite heterogeneous, a considerable practice has evolved at the level of international investment arbitration, which allows some conclusions to be drawn concerning the existence of certain general principles of law regulating the interaction between the two values in question. In particular, certain restrictions to private property rights are legitimate for safeguarding cultural heritage, provided that they are applied in a proportional and non-discriminatory manner and investors are granted just compensation or financial aid and access to effective judicial remedies.

This chapter reviews international practice in the administration of tax regimes and the implementation of tax collection. It analyses claims by investors that particular state actions in tax administration and enforcement have violated various treaty rights, including the guarantee of fair and equitable treatment, restrictions on expropriation, and the violation of particular commitments covered by treaty umbrellas clauses. It surveys general patterns in state practice to suggest a baseline of acceptable actions against which investor claims can be assessed.

This chapter observes that investment treaty tribunals are increasingly confronted with resolving conflicts between investment protection and competing public policy concerns, including the protection of the environment or human rights. It suggests that arbitral tribunals could resolve such conflicts by drawing on proportionality analysis as a public law concept. After illustrating how proportionality analysis as a judicial technique has spread from its origins as a concept of German public law to many other domestic as well as international dispute settlement systems, it argues that proportionality analysis can also be applied, and in fact has been applied, as an interpretative technique in investment treaty interpretation. It particularly plays a role in the context of indirect expropriation and fair and equitable treatment, but also in applying necessity-related clauses.

This chapter analyses the concept of indirect expropriation in international investment agreements. In particular, it focuses on the distinction between a compensable indirect expropriation and a non-compensable general regulation. The chapter begins by presenting the uncertainties surrounding the scope of indirect expropriation, which are reflected in partially contradicting decisions of arbitral tribunals. In order to provide some guidance for the interpretation of expropriation provisions in international investment agreements, it analyses the issue as it appears under the European Convention on Human Rights, US constitutional law, German constitutional law, and the law of the European Union. Finally, the approaches found are compared and common principles are extracted that can be used to interpret expropriation provisions in international investment agreements.

This chapter traces the history of property relations in Russia. It examines how Russian rulers came to respect private property as a bulwark of autocracy and what this respect meant for property in the context of Russian monarchal rule. Topics covered include the reign of Catherine the Great and the invention of absolute private domain; the issue of expropriation; the scope and the legal status of state possessions; and initial attempts to introduce the notion of “public property,” which focused on Russia's natural treasures, such as the forests granted by Catherine the Great into the unlimited ownership of the nobles.

How did the average German learn about politics? The decentral, fragmented nature of the German newspaper market meant that the great majority of contemporaries derived political information from a local paper. This chapter gives a broad sweep of controversial issues as portrayed in a sample of provinical newspapers around Berlin in the period 1925–8. It shows that even in self‐professed ‘unpolitical’ newspapers ideological news coverage was the norm. At the same time, this book demonstrates that overt press support for particular candidates or parties did not have a significant effect. Only where alternative sources of information, like a competing newspaper of a different political orientation, did not exist could the press excert a noticeable electoral impact. The chapter gives new evidence for the regionality of German politics, and helps to explain the tensions between countryside and metropolis.

The thoughtful Irish regarded their country as ‘a separate and distinct kingdom from England’, annexed to the English sovereign and so subject to his prerogative. Uncertainties about how best this sovereignty should be exercised ruffled the relationship. Ireland's unwillingness simply to obey England prompted interference which culminated in the dramatic reconquests of 1649–1652 and 1689–1691. New English victories opened Ireland to enforced settlement from Britain, rather than the gentler infiltration which had been bringing immigrants for generations. In early modern Ireland land abounded; people, especially with capital or specialized skills, were scarce. After prolonged warfare, the population reduced by famine and disease, many of the indigenes dead, exiled, or marked down for expropriation and resettlement, opportunities beckoned to new British settlers. It is that gap between the official aim and how Ireland developed in the later seventeenth century which has to be described and explained.