Creeping Expropriation : In Search for a More Comprehensive Approach

Relying on the significant consistency of the international investment case law regarding the creeping expropriation claims, the authors argue that a more comprehensive approach to the problem of creeping expropriation is possible and needed. The aim of this article is to provide a methodological framework for examining the concept of creeping expropriation. In order to be successful a claim of creeping expropriation must prove that the damage was brought upon his investment by a composite act, comprised of different acts which are all attributable to the State and harmful to his property interests in a manner which is nearly equal to direct taking of property. An arbitral tribunal should identify all of those elements before it reaches the conclusion that the creeping expropriation has ensued. This article provides the overview of numerous cases in order to demonstrate the constitutive elements of the creeping expropriation concept where some of them – the notion of composite act and the issue of attribution of acts to the State – are to be interpreted in a way which is consistent with general international law