Amount of compensation payable is fair market value immediately before expropriation without taking into account information that expropriation was about to occur.
This is the standard that was meant by “prompt adequate and effective compensation”
This has made old argument about full v. fair, adequate, etc irrelevant for the BITs that define compensation standard
So only older set of BITs where standard for compensation is unclear
Regulatory expropriations
CIL says expropriation not unlawful if taken with due process without discrimination and full compensation is paid
Most govts stopped just out and out taking companies
Sometimes regulatory agencies take steps that destroy value to investor without expropriating value to govt, basically regulating company out of existence
Questions: If you don’t expropriate value to govt, is it expropriation? What kind of govt conduct rises to level of destruction of value (how much pain must be suffered)? What of the conduct motivated by intent to destroy value? Is there a time when intent of govt conduct takes it out of the sphere of expropriation?
American word “taking” is same as expropriation
5th A include requirement that is govt takes private property for govt purposes, must compensate. Standard is FMV.
Bc Supreme Court has been pretty religious about 5th A protections and bc we moved to regulatory model in 1930s (long before other countries), we have had a couple of decades more experience thinking about concept of regulatory taking. 5th A protections cover both American and foreign investors
We have developed standard for determining whether there is a regulatory taking.
Where govt requires an owner to suffer a permanent physical invasion of her property– however minor- it must provide just compensation Loretto, Nollan, Dolan
Where regulations completely deprive an owner of all economically beneficial use of her property, it is a total regulatory taking requiring compensation (except to the extent that background principles of nuisance and property law independently restrict the owner’s intended use of the property Lucas
