ANNEX 2 – Expropriation and Compensation
- An action or a series of related actions by a Member State cannot constitute an expropriation unless it interferes with a tangible or intangible property right or property interest in a covered investment.
- Article 14(1) addresses two situations:
- (a) the first situation is where an investment is nationalised or otherwise directly expropriated through formal transfer of title or outright seizure;
- and
- (b) the second situation is where an action or series of related actions by a Member State has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
- The determination of whether an action or series of actions by a Member State, in a specific fact situation, constitutes an expropriation of the type referred to in subparagraph 2(b), requires a case-by-case, fact-based inquiry that considers, among other factors:
- (a) the economic impact of the government action, although the fact that an action or series of actions by a Member State has an adverse effect on the economic value of an investment, standing alone, does not establish that such an expropriation has occurred;
- (b) whether the government action breaches the government’s prior binding written commitment to the investor whether by contract, licence or other legal document; and 56
- (c) the character of the government action, including, its objective and whether the action is disproportionate to the public purpose referred to
in Article 14(1).
- Non-discriminatory measures of a Member State that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the
environment, do not constitute an expropriation of the type referred to in sub-paragraph 2(b).
