EXPROPIACIÓN INDIRECTA POR MEDIDAS CAUTELARES EN PROCEDIMIENTO TRIBUTARIO

Abstract

The present article's purpose is to comment an arbitral award that has been recently dictated by a panel constituted under the International Centre for the Settlement of Investment Disputes, which reflects the present state of art in the subject of indirect expropriation of foreign investment. The ruling deals with the commonly used criteria to distinguish the legitimate exercise of State's police powers, that allows it to protect its essential interests; from other situations that gives raise to the State's responsibility for the conduct of its regulatory organs. The criteria analyzed to determine the responsibility of the State for having adopted measures tantamount to expropriation are: (i) the gravity of the consequences; (ii) the extension of its effects; (iii) the character of the measures; and (iv) its effectiveness.