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"Attributes of property in investment assets: origins in investment law" [2019] ELECD 1829; in Potocnik, Metka (ed), "Arbitrating Brands" (Edward Elgar Publishing, 2019) 137

Book Title: Arbitrating Brands

Editor(s): Potočnik, Metka

Publisher: Edward Elgar Publishing

Section: Chapter 5

Section Title: Attributes of property in investment assets: origins in investment law

Number of pages: 33

Abstract/Description:

Chapter 5 is divided into two parts (A and B). Part A explores expropriation and FET protection under investment treaties (i.e. substantive protection). The expropriation analysis starts with the concept of rights capable of expropriation. Next, this chapter focuses particularly on the elements and tests for indirect expropriation and the possibility of partial expropriation. The book argues that the test “substantial deprivation of attributes of property” is particularly useful in cases of trade mark investments and this structure is followed in Chapters 4 and 6. Under FET, this chapter examines the protection of investors’ legitimate expectations. Part B considers limitations to investment protection and explores the extent to which state’s right to regulate is safeguarded. Absent express treaty wording to the contrary, arbitral tribunals continue to hold great discretion on the extent to which they attach the importance (if any) to the public character of the measures taken.