WWW.DISSERTATION.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Dissertations, online materials
 
<< HOME
CONTACTS



Pages:   || 2 | 3 | 4 | 5 |   ...   | 55 |

«THE UNIVERSITY OF HULL EXPROPRIATION OF FOREIGN PROPERTY IN INTERNATIONAL LAW being a thesis submitted for the Degree of Doctor of Philosophy in ...»

-- [ Page 1 ] --

THE UNIVERSITY OF HULL

EXPROPRIATION OF FOREIGN PROPERTY

IN INTERNATIONAL LAW

being a thesis submitted for

the Degree of Doctor of Philosophy in International Law

in the University of Hull

by

Ali Ghassemi, L.L.B. (Shahid Beheshti University of Iran);

L.L.M. (University of Brussels);

Lecturer in Law (the Faculty of Judicial Sciences, Tehran) (June 1999) To My Wife, Fatemeh CONTENTS Page Acknowledgements

Table oj'abbreviations

Table of cases (national and international)

Table of cases (Iran-US Claims Tribunal)

INTRODUCTION

1. General Introduction

2. Terminology

CHAPTER ONE: THE DEVELOPMENT OF CONCEPTS AND

PROCEDURES IN EXPROPRIATION

l. Expropriation Cases Prior to World War 1.

2. Expropriation and Nationalisation Measures in the Inter-War Period 14

2.1 Russian N ationalisations (1917)

2.2 The Norwegian Shipowners' Claims (1922)

2.3 The Certain German Interests in Polish Upper Silesia Case (1928).19

2.4 The Mexican Oil Nationalisation of 1938

3. Post World War II Nationalisation Measures

3.1 East European N ationalisations

3.1.1 Czechoslovakia

3.1.2 Poland

3.1.3 Former Yugoslavia

3.1.4 Hungary, Rumania and Bulgaria

3.2 Nationalisations in Western Europe

3.2.1 France

3.2.2 The United Kingdom

3.3 Nationalisations in the Third World Countries

3.3.1 Iran

3.3.2 Egypt

3.3.3 Indonesia

3.4 Nationalisations in Latin America

3.4.1 Cuba

3.4.2 Chile

3.4.3 Peru

3.5 OPEC Countries Take-overs

3.5.1 Iraq

3.5.2 Libya

3.5.3 Venezuela

4. Conclusion

CHAPTER TWO: EXPROPRIATION AND LEGAL PRINCIPLES. 72

1. Traditional International Law: The Law of State Responsibility for Injuries to Aliens

1.1 International Minimum Standard

1.2 National Treatment Standard

2. Legal Status of Aliens in GeneraL

3. The Right ofa State to Expropriate Foreign Property

4. Limitations on a State's Right to Expropriate Foreign Property......... 88

4.1 The Public Purpose Principle

4.2 The Principle of Non-discrimination

4.3 The Principle of Compensation

5. Expropriation in Violation ofa Treaty

6. Expropriation in Breach of State Contracts

6.1 The Choice of Law Governing State Contracts

6.2 Internationalised Contracts

6.3 State Responsibility for Breach of Contract

6.4 Stabilisation Clauses

7. Pennanent Sovereignty over Natural Wealth and Resources............ 147

7.1 The Nature and Content of Pennanent Sovereignty

7.2 Pennanent Sovereignty over Natural Resources and the Right of Self-detennination

7.3 UN General Assembly Resolutions on Pennanent Sovereignty over Natural Resources

7.4 Legal Status of UN General Assembly Resolutions

7.4.1 Legal Status of Resolution 1803

7.4.2 Legal Status of the Charter

8. Conclusion

CHAPTER THREE: INDIRECT EXPROPRIATION

1. Introduction

2. Definition of the Subject

3. The Question of Attribution

4. The Question of Intent.

5. What Acts of the State Constitute Indirect Expropriation?............... 208

5.1 Physical Seizure of Property

5.2 Forced Sale of Property

5.3 Indigenisation Measures

5.4 Refusal to Return Property or Failure to Assist its Export......... 224

5.5 Exercising Management Control over Property

5.5.1 The Date of Expropriation

6. Expropriation and Regulation

6.1 General Remarks

6.2 Regulatory Measures to Prohibit Repatriation of Funds............ 242

6.3 Withdrawal of Pennits and Licenses

6.4 Confiscatory Taxation

7. Conclusion

IV CHAPTER FOUR: COMPENSATION

1. Introduction

2. Legal Foundations for the Payment of Compensation

2.1 Duty to Compensate Aliens

2.2 Theoretical Basis

2.2.1 Acquired Rights

2.2.2 Unjust Enrichment

2.2.3 Human Rights

2.2.4 Damage or Loss

3. The Impact of Lawfulness, Large-Scale Expropriations and Dual Nationality Status on the Standard of Compensation........ 279

3.1 The impact of lawfulness: Lawful and Unlawful Expropriation 280

3.2 The impact of Large-Scale Expropriations

3.3 The Impact of Dual Nationality

4. The Standard of Compensation

4.1 Was 'Full' Compensation the Pre-World War II Standard?....... 298

4.2 The Post-World War II Standard

4.2.1 State Practice

4.2.2 Case Law

4.2.3 Resolutions and Inter-governmental Declarations............ 312 4.2.4 Writings of Publicists

4.3 The Current Standard





4.3.1 Bilateral Investment Treaties

4.3.2 Iran-US Claims Tribunal

5. Valuation of Expropriated Property

5.1 Book Value

5.2 Market Value

6. Conclusion

CHAPTER FIVE: CONCLUSION

BIBLIOGRAPHY

v

–  –  –

Above all thanks to Allah who has granted me the capacity to undertake this thesis. I would also like to offer my appreciation to the Bureau of International Legal Services of the Islamic Republic of Iran and, particularly, its head Dr. Eftekhar Jahromi who has given me the opportunity to pursue my studies to PhD level. lowe a deep debt of gratitude to him, for his constant support and encouragement since my undergraduate studies.

My special thanks to Professor Hilaire McCoubrey for his friendliness, kindness and excellent supervision. His remarkable comments merit particular appreciation.

I am also grateful to the Faculty of Judicial Sciences and its staff, especially, Dr. Meer Mohammad Sadeghi, the Dean, for agreeing to my request to study.

I would like to express my gratitude also to those who encouraged and helped me in any way, particularly my friends Dr. Hossein Piran, Legal Assistant to the Iran-US Claims Tribunal, and Mohammad Hossein Zahedin-Labbaf, Agent of the Government of the Islamic Republic of Iran before the Tribunal.

Words of thanks are due as well to my friend Eric Davies, who devoted time and effort in editing and proofreading the English of the thesis, and to the librarians of the Document Supply service of the Brynmor Jones Library Barbara Shaw and Sue O'Connell. Moreover, a debt of gratitude is owed to Mrs Ann Ashbridge (Research Staff) and Miss Sue McDonald (Postgraduate Secretary) at the University of Hull Law School for their kind assistance and friendly treatment over the research years.

Finally, my deepest thanks are to my wife, Fatemeh, and children: Mahdi, Zeinab and Rouhollah, for their patience. Without constant encouragement from my wife it would not have been possible for me to accomplish this work. Her sacrifice during our three years of separation should not go without acknowledgement and thanks. A particular word of thanks also to my IS

–  –  –

AGIP Case

Albert Bela Reet Case

Amco Asia Corporation v. Indonesia

Aminoil Case

Anglo-Iranian Oil Company Case

Anglo-Iranian Oil Co. v. Idemitsu

Anglo-Iranian Oil Co. v. S.U.P.O.R. Co

Anton and Frances Tabar v. Yugoslavia

Aramco Case

Banco Nacional de Cuba v. Chase Manhattan Banlc

Banco Nacional de Cuba v. Sabbatino

Barcelona Traction Case

Benvenuti and Bonfant v. Congo

Biloume v. Ghana Investment Centre

BP Case

Brazilian Loans Case

Cadenhead Case

Certain German Interests in Polish Upper Silesia Case

Chorzow Factory Case

Corfu Channel Case

Com Products Refining Company Claim

David Goldenberg Case (Romania v. Germany)

De SabIa case (United States v. Panama)

Delagoa Bay Railway Case

Dickson Car Wheel Company Case

Elettronica Sicula S.P.A. (ELSI) Case (United States v. Italy)............ 84, 117, 195, 220

Ellermann Case

Emanuel Too Case

Finlay Case

Gowen and Copeland Case

Gudmundsson v. Iceland

Hartmann (J.) Case

Hopkins Case

Island of Palmas Case (Netherlands v. United States)

James and others v. Sweden

Jonas King Case

Kiigele v. Poland

Lena Goldfields Arbitration

IX Letco v. Liberia

Liamco Case

Lithgow and others v. United Kingdom

Losinger Case

Luther v. Sagor

Mavrommattis Jerusalem Concessions Case

Murphyores v. The Commonwealth of Australia

Neer Case

Norwegian Shipowners' Claims

Nottebohm Case

Oscar Chinn Case

Portuguese Religious Properties Case

Qatar Case

Revere Case

Rose Mary Case (Anglo-Iranian Oil Co. v. Jaffrate and others)

Sapphire International Petroluem v. NIOC

Savage Case

Serbian Loans Case

° Shufeldt Case

Sicilian Sulphur Monopoly Case

Spanish Zones of Morocco Claims

Sporrong and Lonnroth v. Sweden

Temple ofPreah Vihear Case

Texaco v. Libya

........................

United States v. Harry Ptasysnki and others

Voting Procedure Case

Walter Smith Claim

Western Sahara Case

Wimbledon Case

x

Table of Cases (Iran-US Claims Tribunal)

American Bell International

American International Group

Amoco

Anaconda-Iran

Aryeh

Benjamin R. Isaiah

Case No. A18 (Iran v. United States)

Case No. Bl(4) (Iran v. United States)

Dallal

Dames and Moore

Davidson (Homayounjah)

Eastman Kodak

Ebrahimi

Flexi-Van Leasing

Foremost Tehran

Gabay

Ghaffari (F.)

Golpira

Harold Birnbaum

Hood

Houston

INA

International Technical Products

Karubian

Khosrowshahi (F.L.)

Malek (R.S.)

Merrill Lynch

Mohtadi

Motorola

Oil Field of Texas

Otis Elevator.

Petrolane

Phelps Dodge

Phillips Petroleum

Protiva

Saghi

Schering

Sea-Land

Sedco

Seismograph

Xl Sola Tiles

Starrett

Thomas Earl Payne

Tippetts

United Painting

William Pereira

INTRODUCTION

1. General Introduction Expropriation of foreign property is not a new phenomenon. However, since World War II the issue has gained a new lease of life. With the decolonisation and independence of numerous States of Asia and Africa, the controversy over the rules relating to this branch of international law has intensified. There is a lot of disagreement as to the amount of compensation that must be paid to the affected person. The attempts at codification of the law on this issue by several private bodies,l and under the auspices of the League of Nations, as well as the United Nations indicate the importance attached to the subject under discussion.

The main parties in the controversy are the capital exporting States which invest in Latin American, erstwhile socialist, Asian and African countries (referred to as developing States). The latter States, in pursuance of their economic programmes, resort to the nationalisation of those investments. Thus, the post-World War II period witnessed dramatic nationalisations and other fonns of economic restructuring in many countries, with widely differing ideological, political and economic systems, throughout the world, even Western European countries, such as Britain and France. This nationalisation of foreign property reached its peak in the mid-1970s.

The problem came to the fore with the Russian nationalisations of foreign property in the early 1920s, and was followed by the Mexican expropriation of foreign-oil interests in 1938. Since then, it seems that the positions of the Private bodies, such as the Institute of International Law, Harvard Law School and the International Law Association.

contesting parties have not changed or improved substantially. Therefore, in the case of Mexican measures, in a celebrated exchange between the United States and Mexican Governments, two entirely different views on the principles governing the treatment of foreign property were articulated.

Six decades later, the Government of Iran, before the Iran-United States Claims Tribunal, has substantially taken a similar position to that of the Mexican Government, and the Government of the United States has also maintained the stance that it took in the Mexican expropriation. This indicates that since then, the parties to the dispute have maintained their positions.

The developing States have sought to assert their views in international forums in which they enjoy a numerical majority. They have used that majority to pass resolutions which incorporate their views on expropriations. Thus, during the 1960s and 1970s the United Nations General Assembly was the main forum for their efforts. They have also taken positions during disputes involving foreign nationalisations indicating that they are not prepared to accept rules which have been formulated without their active participation.



Pages:   || 2 | 3 | 4 | 5 |   ...   | 55 |


Similar works:

«Corinna Lüthje, University of Hamburg Conceptualizing the interconnected agents of collective memory: The transforming perception of a regional geohazard between mediated discourse and conversation Paper presented to the ECREA Philosophy of Communication Conference “Landmarks2 – Communication and Memory”, 9.-11. Dez. 2009 in London Social memory is a constructive process rather than a fixed object, in which different actors constantly negotiate with each other in their respective...»

«Causality and Communication: Relativistic astrophysical jets and the implementation of science communication training in astronomy classes by Susanna Kohler B.S., University of California, Santa Barbara, 2008 M.S., University of Colorado Boulder, 2010 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Doctor of Philosophy Department of Astrophysics and Planetary Sciences This thesis entitled:...»

«An Investigation into Communication Strategy Usage and the Pragmatic Competence of Taiwanese Learners of English within a Computer Mediated Activity Thesis Submitted for the Degree of Doctor of Philosophy at the University of Leicester by Ying-Chuan, Wang School of Education University of Leicester September 2008 ABSTRACT In order to increase the competitiveness of Taiwan to international environment, Taiwanese Government has become aware of the importance of English in reforming English...»

«Facilitating Intercultural Development during Study Abroad: A Case Study of CIEE’s Seminar on Living and Learning Abroad A DISSERTATION SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL OF THE UNIVERSITY OF MINNESOTA BY Tara Alicia Harvey IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY R. Michael Paige, Adviser June 2013 © Tara Alicia Harvey 2013 ACKNOWLEDGMENTS This dissertation is a result of my own experiences living, learning, and teaching abroad; advising...»

«Tel Aviv University The Lester & Sally Entin Faculty of Humanities The Shirley & Leslie Porter School of Cultural Studies THE ROLE OF SIMILARITY IN PHONOLOGY: EVIDENCE FROM LOANWORD ADAPTATION IN HEBREW THESIS SUBMITTED FOR THE DEGREE “DOCTOR OF PHILOSOPHY” by Evan-Gary Cohen Submitted to the Senate of Tel Aviv University May, 2009 This work was carried out under the supervision of Prof. Outi Bat-El TABLE OF CONTENTS Abstract ACKNOWLEDGEMENTS CHAPTER 1.  INTRODUCTION 1.1.  Loanwords and...»

«MINING PREDICTIVE PATTERNS AND EXTENSION TO MULTIVARIATE TEMPORAL DATA by Iyad Batal BS, University of Damascus, 2005 MS, University of Pittsburgh, 2008 Submitted to the Graduate Faculty of the Kenneth P. Dietrich School of Arts and Sciences in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Computer Science University of Pittsburgh 2012 UNIVERSITY OF PITTSBURGH COMPUTER SCIENCE DEPARTMENT This dissertation was presented by Iyad Batal It was defended on...»

«Expanding the Scope of Localization: A Cultural Usability Perspective on Mobile Text Messaging Use in American and Chinese Contexts By Huatong Sun A Thesis Submitted to the Graduate Faculty of Rensselaer Polytechnic Institute in Partial Fulfillment of the Requirements for the Degree of DOCTOR OF PHILOSOPHY Major Subject: Communication and Rhetoric Examining Committee: William Hart-Davidson, Thesis Adviser Cheryl Geisler, Member Robert Krull, Member Linnda Caporael, Member Rensselaer Polytechnic...»

«The Concept of the Ascent of Prayer by Sixteenth-century Jerusalem Kabbalist, R. Joseph ibn Zayyah Thesis submitted for the degree of “Doctor of Philosophy” by Sachi Ogimoto Submitted to the Senate of the Hebrew University of Jerusalem August 2011 This work was carried out under the supervision of Professor Jonathan Garb Acknowledgements First and foremost, I would like to express my deep and sincere gratitude to my supervisor, Professor Jonathan Garb, of the Department of Jewish Thought,...»

«MOOS Mission Orientated Operating Suite Paul Michael Newman Department of Ocean Engineering Massachusetts Institute of Technology Abstract This paper is about simple to use, extensible software for mobile robotic research. It is concerned with a project called MOOS – an acronym for Mission Oriented Operating Suite. MOOS is an umbrella term for a set of libraries and applications designed to facilitate research in the mobile robotic domain. The spectrum of functionality provided ranges over...»

«A METHOD FOR THE DEVELOPMENT OF AN EFFECTIVE FLOW DIVERTING DEVICE FOR TREATMENT OF CEREBRAL ANEURYSMS A DISSERTATION SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL OF THE UNIVERSITY OF MINNESOTA BY Ricky Chow IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY Eph Sparrow, PhD September 2013 ACKNOWLEDGEMENTS The author is extremely grateful for the following people who have provided emotional guidance, financial support, experimental resources, learning...»

«COLLECTIVE TRAUMATIC MEMORY AND ITS THEATRICAL MODELS: CASE STUDIES IN ELIE WIESEL AND AESCHYLUS by Paul Wayne Wilson II B.A. in Theatre and Latin, Butler University, Indianapolis, 2000 M.A. in Theatre, Miami University, Oxford, OH, 2004 Submitted to the Graduate Faculty of the Kenneth P. Dietrich School of Arts and Sciences in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Pittsburgh 2014 UNIVERSITY OF PITTSBURGH THE KENNETH P. DIETRICH SCHOOL OF...»

«INSTRUMENTALISATION OF NATURAL SCIENCES FOR THE RECONSTRUCTION OF ARCHITECTURAL KNOWLEDGE: LISSITZKY, DOESBURG, MEYER, TEIGE A Thesis Submitted to the Graduate School of Engineering and Sciences of zmir Institute of Technology in Partial Fulfillment of the Requirements for the Degree of DOCTOR OF PHILOSOPHY in Architecture by Ülkü NCEKÖSE February 2006 ZM R We approve the thesis of Nilgün K PER Date of Signature 01 February 2006 Assist. Prof. Dr. eniz ÇIKI Supervisor Department of...»





 
<<  HOME   |    CONTACTS
2016 www.dissertation.xlibx.info - Dissertations, online materials

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.