Chapter 10

Lawful Versus Unlawful Expropriation: Is this a Distinction Without a Difference?

PANEL 3

PROFESSOR SOURGENS:  Thank you very much for these very thoughtful remarks, and we’ll take them back up on Panel 4 when we deal with corruption in more detail.

Could I now ask Panel 3 to join us up on the dais, please.

For Panel 3, it gives me great pleasure to introduce our moderator, who is a frequent contributor to the Juris Conferences and good friend, Mr. Michael Nolan.  Michael is a member of the AAA Board of Directors.  He sits on the ICSID Panel of Arbitrators, is really one of the staples in the Washington, D.C. investor‑State arbitration circuit, and has acted on behalf of both States and investors in investor‑State proceedings for a time longer than he would like to admit, I’m sure.

So, with that, I will leave you in his capable hands.

MR. NOLAN:  Well, thank you, Freddy.  I’m pleased, if a little surprised, to see that you continue to say nice things about me even though you don’t work for me any longer.  So that’s a pleasure.

So, I would like very much to introduce both our authors and our panelists to you.  It seems to me that a good way for me to do that would be to introduce them in the context of this topic, so let me speak for just a moment to what this panel is about, and then I’ll introduce my colleagues and tell you how it is that they will hopefully facilitate some discussion and understanding of our topic.

Our larger theme today is natural resources.  And it’s fundamental, certainly as a matter of fact, if not as a matter of law, that States, sovereigns, can expropriate natural resources because States have armies and they have other measures like taxation and what have you.  So, to the extent there is an investment that affects natural resources, States can act in ways that affect that investment.  That is simply an attribute of the fact that they are sovereign.