whereas the Investment Agreement of the Organization of the Islamic Conference (1981) requires “adequate and effective compensation to the investor in accordance with the laws of the host state regulating such compensation”.484 The ASEAN Investment Agreement contains the term “prompt, adequate, and effective compensation”.485 The NAFTA specifies that such compensation shall be “equivalent to the fair market value of the expropriated investment immediately before the expropriation took place (‘date of expropriation’) and shall not reflect any change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate, to determine fair market value”. Moreover, the compensation will be “fully realizable” and “freely transferable” in any currency from the host country.486 The Energy Charter Treaty uses the standard of “quick, appropriate and effective” compensation.487
However, the Amoco ruling clearly states that the future capitalization of income that may be generated by such activity after the transfer of ownership as a result of expropriation (lucrum cessans – the judgment concerning compensation for “goodwill and commercial prospects”) should not be taken into account when assessing the compensation due for the legal takeover of property.488 In the case of Ebrahimi (1994), the court pointed out that the extra remuneration for lucrum cessans is dependent on the prior characterization of the takeover as unlawful.489 In some cases, such as Phillips Petroleum (1989), the Tribunal did not differentiate the compensation, but applied the uniform standard provided for in the Treaty on mutual relations and interpreted it as a requirement for compensation representing the “full equivalent of the property taken”.490
The ICC guidelines contain the “without undue delay” formula,491 while the Draft United Nations Code of Conduct on Transnational Corporations does not include this element. The World Bank Guidelines equate the terms “prompt” and “without delay”, but accept that if the state is affected by exceptional circumstances, the compensation may be paid within a period which shall be as short as possible and which shall in no case exceed five years from the date of acquisition, provided that reasonable market interest is applied to deferred payments in the same currency.492
With regard to the requirement of “adequacy” or “full value” of compensation, ICC guidelines use the term “just compensation”.493 The Draft United Nations Code of Conduct on Transnational Corporations uses the term “adequate compensation… in accordance with the applicable legal rules and principles”. The World Bank refers to the traditional formula “appropriate” in the sense of market value. The guidelines contain detailed rules on how to determine the market value of the investment in a reasonable manner.494
Regarding the requirement for the effectiveness of the compensation, the ICC guidelines contain only the word “effective” in the compensation clause.495 The World Bank Guidelines amount to effective indemnity payable in “the currency brought in by the investor where it remains convertible, in another currency designated as freely usable by the International Monetary Fund or in any other currency accepted by the inwestor”.496
3.5.4.5 The requirement to perform a reliable procedure
Although it is universally accepted that expropriation must take place on the basis of reliable procedure,497 none of the resolutions regarding permanent sovereignty over natural resources explicitly refers to this concept.
The requirement of a fair legal process was important for refusing to recognize the legality of a series of “nationalizations” by Western courts and governments, for example, the Chilean copper mines. Chilean law regulating the nationalization of copper adopted the principle that compensation should be reduced by the amount of excess profits which the copper mining companies in the past had been awarded in a discretionary way by the then head of state, President Allende, with no possibility of appeal.498
The ICC guidelines call for the avoidance of “unjustified measures”.499 The World Bank’s guidelines vaguely refer to “applicable legal procedures”,500 whereas the Seoul Declaration and the Draft United Nations Code of Conduct on Multinational Corporations contain no reference to a fair trial.
126 R. Bernhardt (ed.), Encyclopedia of Public International Law, 12 Instalments, Amsterdam 1981–1990.
127 R. Higgins, The taking of property by the state: recent developments in international law (vol. 176), in: Collected Courses of the Hague Academy of International Law, The Hague Academy of International Law, http://dx.doi.org/10.1163/1875-8096_pplrdc_ej.9789024728473.259_392 (2018-06-24).
128 M. Dixon, R. McCorquodale, Cases and Materials on International Law, London 1995.
129 World Bank Group, Legal Framework for the Treatment of Foreign Investment, vol. I: Survey of Existing Instruments: Progress Report and Background Studies, Washington 1992.
130 J. Makarczyk, Principles of a New International Economic Order: A Study of International Law in the Making, Dordrecht 1988.
131 C. Brower, The Iran-United States Claims Tribunal, (in:) Recueil des Cours (1990–V) vol. 224, p. 127–396, Dordrecht 1993.
132 A. Mouri, The International Law of Expropriation as Reflected in the Work of the Iran-US Claims Tribunal, Dordrecht 1994.
133 N. Schrijver, Sovereignty over Natural Resources, Cambridge 2008, p. 258 et seq. and 306 et seq.
134 UNGA resolution of 12 January 1952, 523 (VI)…, op. cit.; UNGA resolution of 21 December 1952, 626 (VII) …, op. cit.; UNGA resolution of 17 December 1973, 3175 (XXVIII), Permanent Sovereignty over Natural Resources in the Occupied Arab Territories, https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/282/47/IMG/NR028247.pdf?OpenElement (2018-06-24); UNGA resolution of 20 July 1992, 46/235, Restructuring and revitalization of United Nations in the economic, social and related fields, A/RES/46/235, http://unctad.org/en/PublicationsLibrary/ares46d235_en.pdf (2018-06-24); UNCTAD Trade and Development Board, resolution 88 (XII) of 19 October 1972, International Legal Materials 1972 (11), p. 1474.
135 UNCTAD I, Final Act of 15 June 1964…, op. cit.,. No. III; UN resolution 1970 Declaration on Principles of International Law, Principle III.4; UNGA resolution of 17 December 1973, 3171 (XXVIII)…, op. cit., Preamble, No. 3.
136 Art. 1, International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49, https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
