CEU Electronic Theses and Dissertations, 2020
| Author | Berdikulova, Madina |
|---|---|
| Title | Kyrgyz investment law and the problem of expropriation: Would the Indian Model BIT help? |
| Summary | Regrettably, nowadays the Kyrgyz Republic encounters a substantial amount of expropriation claims arising out of investor-to-state dispute settlement cases. This system allows foreign investors to request huge amounts of compensation for any government intervention that would have an adverse effect on their investments. In addition to it, vaguely stipulated expropriation rules in the BITs, to which Kyrgyzstan is a party, primarily favors the interests of foreign investors. Hence, this paper seeks to suggest a legal definition of indirect expropriation that strikes an appropriate balance between, on the one hand, the rights of foreign investors and, on the other hand, the sovereign regulatory authority of the country. For this reason, expropriation clause under the Indian Model BIT is analyzed and compared with the expropriation clauses under the BITs, which have been used as the legal basis for claims of foreign investors against Kyrgyzstan. Further, it examines whether the use of expropriation clause under the Indian Model BIT would have precluded the disputes or positively have changed the outcomes for Kyrgyzstan should it be used instead of the expropriation clause invoked by the investors against Kyrgyzstan. It is concluded that, as such, expropriation rule under Article 5 of the Indian Model BIT does not strike a balance between the interests of host states and foreign investors. Moreover, it would not have changed positively the outcomes of investment disputes. Nevertheless, expropriation rule under the Indian Model BIT has the merit of establishing a flexible, case-specific set of factors to address the question of how to determine indirect expropriation. Moreover, it gives an opportunity to states to invoke a police power exception precluding the constitution of indirect expropriation. Hence, although, having not balanced the interests of host states and investors, the alternative expropriation rule under the Indian Model BIT would have helped Kyrgyzstan at least to invoke police power exception favoring the states’ interests. |
| Supervisor | Lawrence Jessica Charles, Soave Tommaso |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2020/berdikulova_madina.pdf |
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