El análisis de la actuación estatal en supuestos de expropiación indirecta de inversiones foráneas, tras una década de práctica arbitral

Through the study of different arbitral awards issued in the last decade, this work aims to determine the existence of common analytical elements of arbitrators to examine state action in indirect expropriation of foreign investments cases. Using the inductive method and the case-by-case approach method, 172 awards issued between 2010 and 2021 were reviewed. Of these, 149 were systematized and analyzed. We start from the initial hypothesis according to which some tribunals currently analyze such action in more detail. This study yielded several findings. In the first place, it was shown that in 42% of the cases the revision of the state action was not considered as an identifying criterion of indirect expropriations. In 2%, it was even classified as a non-relevant element. While in 47%, the state measure was analyzed. Of this percentage, in 26% of the cases it was considered a legitimate act, while in 21% it was an illegitimate act. In 9% of the cases, it was determined that the state action was iure gestionis and not iure imperii. In second place, the study showed the existence of four common elements that correspond to (a) the identification of the action or conduct attributable to the State organ claimed by the investor; (b) the presumption of legitimacy of the State organ s action; (c) the assumptions of illegitimate action by the State. We believe that the examination of State action is very important since it allows an exhaustive study of the problem raised and that its resolution is much more complete and transparent for the parties involved and for the community. If the measure really meets public objectives, we would be in the presence of a sovereign and legitimate action by the State. However, if this proves not to have been the case, the Responsibility of States for Internationally Wrongful Acts system may be engaged. Under this scenario, the host State may face costly litigation, detriment to the quality of life of its citizens through the generation of external non-financial public debt and increased reputational risk vis-à-vis its peers in the international community.