Judicial Expropriations - Difficulties in Drawing the Line between Adjudication and Expropriation

When foreign investors complain of measures that adversely impact their investment, the authorities from which these measures originate often pertain to very different government branches. At first glance, it appears that investment treaties and the pertinent rules of state responsibility take this fact into account because they provide for equal application of investment protection rules to acts of all branches of a state. However, when it comes to acts of the judiciary, we are confronted with a somewhat complicated situation. First, cases dealing with violations of expropriation standards by the judiciary are scarce. Second, there are important structural differences between the judiciary and other branches of government, which triggers the question whether our traditional concept of expropriation and the generally formulated protection standards in investment law can accommodate these differences. It is evident that there is a need for clarification, which may be achieved by looking at investment arbitration cases that have dealt with the concept of judicial expropriations and its difficulties. Some tribunals have had to examine whether and when judicial acts may constitute an expropriation and what grounds of lawfulness are to be considered when courts expropriate. Another question is whether only judicial acts of courts of last instance can bring about an expropriation relevant under international investment law and whether the exhaustion rule applies in the context of judicial expropriations. None of these inquiries have been settled but are worth investigating further