La identificación de la expropiación indirecta: El análisis de los criterios de privación de la propiedad y del tiempo utilizados en la práctica arbitral reciente

The high level of litigation between investors and host States largely corresponds to problems arising from expropriation claims regarding investor’s investment. In cases of indirect expropriations, the complicated task of arbitral tribunals is to distinguish whether the objected state measure corresponds or not to a legitimate action by the host State to protect its public interests. The unctad and the oecd have used several criteria for identifying an indirect expropriation, especially the substantial deprivation of investment property and time, so we ask whether if they have been applied or not by recently arbitration practice. After the analysis of 15 arbitral awards issued in different years from to 2010 to2019, we concluded that these criteria are mostly applied (especially unctad), although they are not always mentioned. Also, it is important to note the analysis by the arbitral tribunals of previous arbitral awards and the study of specialized doctrine. Likewise, due to the tendency of most recent investment treaties to incorporate these criteria (in their articles or as an annex), coming years will be decisive in the arbitration practice before the eventual scrutiny that the arbitral tribunals will do of the performance of the investors and the host States, in the application of these conventional sources.