. Why classic? Because the law on expropriation is not an invention of IIL, but goes back to long-standing discussion and practice in general international law. Students of public international law may already be familiar with expropriations under international law from dealing with diplomatic protection, the minimum standard of treatment, or, as it used to be called, the law of ‘aliens’ (or foreigners, as we would say today). One will also recollect the debate in the UN General Assembly about the proper standard of expropriation and compensation in the context of calls for a ‘New International Economic Order’ in the 1960s/1970s. It is important to understand, however, that all these issues still relate to modern investment law. Certainly, the focus has shifted. Today the debate is no longer primarily about the so-called ‘Hull formula’1 and whether customary international law prescribes this formula or another one, or about the calculation of the compensation due in cases of expropriation. Most of these problems have been specifically addressed in IIAs of the so-called BIT era that began around 1960. Rather, today’s focus is on what the scope of a protected investment is and what constitutes (indirect) expropriation.
As briefly discussed in our introduction, investment protection standards are often rooted in concepts of general international law. Expropriation, too, was regulated by customary international law, particularly through the minimum standard of treatment for ‘aliens.’
The point of departure, and also a very important fact often overlooked in the highly politicized current debate...
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