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Wednesday, June 10, 2009

Confusion Between American and International Takings Law

I should probably write something more substantial about this at some point, but I've been talking with various people recently about the international law of expropriation and its relationship to U.S. takings law.  There are a host of important differences, the biggest being that the former is based on international law, while the later is based on the U.S. constitution.  I wanted to point out one big difference that may be subtle and easy to miss.  Many international expropriation cases involve a breach by a host country of a contract of some sort with a foreign investor -- maybe a natural resources concession contract, or a power purchase agreement with a government utility.  In U.S. law, these contractual breaches would raise Contracts Clause issues.  So the international cases often feature expropriation discussions that meld issues that in the U.S. would be distinctly considered under the Contracts Clause and the Takings Clause.  This is not to say that in every case the government would lose on the Contracts Clause issue in the U.S. courts; rather, government breach of contract issues are usually considered separately from expropriation issues in U.S. cases.  In international cases, the two sets of issues can be completely intertwined.

Ben Barros

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