ABSTRACT
The increased freedom of goods and capital throughout the world, especially after 1980s, enabled investors to maximize their profits by taking advantage of the advantageous conditions in foreign countries. Investors concentrating their investments on energy to meet the increasing energy needs in today’s world, in other respects, must also consider the possibility of expropriation of the host-state. States are contingent upon standards for expropriation by concluding bilateral or multilateral international agreements with the intent of providing legal confidence in expropriation on the purpose of attracting investors to the country. In the present study, the types of expropriation and the conditions stipulated for expropriation in investment agreements will be examined
I. INTRODUCTION
The world’s population and technological advancements have led to an increase in the demand for energy, which is gradually rising. Both governments and investors in the private sector have been intensifying their investments toward the energy sector in recent years.
Many investors prefer to invest in a foreign country rather than their home country by evaluating various economic and political risks. By establishing dominance in the region, access to cheap labor in the host state, ease of transportation, and low-cost production opportunities, foreign investors who take advantage of the opportunity to invest in nations where these regulations are absent or are prevented from doing so by environmental, competitive, licensing, and other regulations in their own country, profit more. The host state responds by gaining from the employment power created by the foreign investor in the nation, the technology and infrastructure it brings, and the projects it can realize that the domestic investor cannot, while also paving the way for domestic investors to advance thanks to the know-how brought and introduced by foreign investors. Therefore, states offer incentives to attract foreign investors and they become a party to international agreements to build confidence in the legal climate in the country in order to eliminate the hesitations of investors.
Therewithal, since the host state is in the position of sovereign power and the state’s executive and legislative powers, in so far as having the power to use the security forces and enforcement capacity against foreign investors, energy investment law has developed with a focus on protecting foreign investors. Mechanisms to protect foreign investors are national investment legislation, bilateral investment agreements between the host state and the foreign investor’s state, and energy investment agreements in the nature of multilateral contracts.
Mechanisms to protect foreign investors are towards the political and economic risks faced by foreign investors. One of the political risks is expropriation. In this study, the types of expropriation, the way it is handled in international agreements and the standards on compensation are discussed.
II. FOREIGN ENERGY INVESTMENT
Energy investment, which is a great opportunity for economic development in order to meet the increasing energy need especially due to technological developments in the last century, has been regulated by states both on the basis of national legislation and in international agreements. Energy investment, which is the investment subject of the majority of foreign investors as well as state or domestic investors, is defined differently from each other in the doctrine, arbitral tribunals and case law, by making teleological and literal interpretations in terms of its subject. For this reason, there is no uniform definition1. But in general, foreign investment is defined as “The commitment of a significant amount of resources to contribute to the development of the host state by taking risks within the scope of a long-term project and in the framework of the main purpose of making profit or gain”. in the doctrine of international law2. It can be indicated that in order for an investment to be accepted as a “foreign” or “international” investment, it must have a foreign element in terms of the investor’s personality and the investment process3. A natural person who is a citizen of a different country carries the element of foreignness in terms of legal entities and associations of the nationality of another country. The element of foreignness in the investment process is provided by the transfer of capital and financial funds from one country to another.
Types of Investment
Foreign energy investment is divided into two as direct and indirect. Foreign direct investment is defined as “the transfer of tangible and intangible assets from one country to another”4, while indirect foreign investment is more often defined as the issuance of stocks or bonds as a portfolio investment5. Foreign direct investment, which is a longterm investment type with a more tangible, physical existence, and permanent works, should be undertaken by evaluating the risks and conditions in detail due to these characteristics6. Due to the permanence of the investment, a foreign investor who is unable to move the hydroelectric power plant and or solar panel system he or she developed back to his or her home country assumes a significant risk. Consequently, this makes the investor think twice.
III. RISKS FACED BY INVESTORS AND THE PROTECTION MECHANISMS
A. In General
Investing, in accordance with the legislation, conditions and opportunities of another country, involves many economic, political and socio-political risks. While the size of the market in the host state, labor costs, tax obligations, price controls, restrictions on capital transfers, restrictions on hiring foreign workers create economic risks, “the local people’s boycott of foreign companies, the country’s value judgments preventing shopping from foreign manufacturers and the government’s support of this system”7 contribute to the existence of cultural barriers. Political events and processes in the host state, civil war, political developments and relations between the investor’s state of citizenship or nationality and the host state, the threat of expropriation by the host state against the foreign investor constitute political risks. When political risks are divided into macro and micro political risks, it is observed that macro political risks are relevant for all investors in the host state. Political boycotts by the state, the tendency to expropriation private investment, changes in the tax code, price controls are examples of macro political risks. Micro-political risks are risks that apply to specific sectors, projects and investors. Tax, licensing, registration regulations on certain business activities, decisions to expropriate foreign investments in certain sectors, and import or export regulations only for certain goods are considered micro-political risks.
B. Mechanisms for the Protection of Investments
When choosing a country to invest in, foreign investors weigh and evaluate macro-micro political, economic and cultural risks. Since the host state cannot realize the investments that it wants to realize in its own country through local investors or the state due to reasons such as capital, infrastructure, etc., it enacts various regulations in order to attract foreign investors to its country. States seeking to attract foreign investors by offering incentives, tax reductions, privileged terms and conditions to foreign investors in certain sectors or for certain activities make economic promises and, more importantly, take steps to provide legal protection. By amending national legislation in favor of foreign investors, by signing bilateral investment treaties with many states, and by becoming a party to the Energy Charter Treaty, a multilateral investment treaty that will be discussed in more detail later, it creates a sense of confidence in foreign investors that their investment will be protected and treated in accordance with international standards.
Expropriation is one of the biggest issues that investors will face, and since it is the topic of this article, we will discuss how expropriation is dealt with in international energy investment agreements, how investors are safeguarded from the risk of expropriation, and the guidelines and principles of expropriation in situations where it is necessary and appropriate
IV. EXPROPRIATION
A. The Concept of Expropriation
Expropriation, which is regulated in Article 46 of the Constitution as “The State and public legal entities are authorized to expropriate all or part of the immovable properties in private ownership and to establish administrative easements on them, according to the principles and procedures set forth by law, provided that they pay their real value in advance, in cases where the public interest so requires”, is “to be used in the execution of public services that the State or public legal entities are obliged to fulfill, it is a mixed procedure consisting of administrative and judicial stages in which, for the purpose of public interest, the immovable property owned by a private law person is transferred to the administration with the registration decision of the court if the real value to be determined by the civil court of first instance upon the application of the administration is paid by the administration due to the failure to agree on the price during the purchase process with the owner”8. An immovable subject to private ownership can only be expropriated if “public interest” so requires and the owner of the immovable is paid its real value. Expropriation transactions that do not meet the aforementioned elements may be subject to action for annulment under administrative jurisdiction. However, since the concept of public interest here is abstract, a precise definition cannot be given. In the doctrine, it is stated that the public interest in the narrow sense indicates the measure in limiting the right to property and interfering with its essence9, while in the broad sense, it means the common good, general benefit, social welfare above individual interest. In the context of international investment law, expropriation is defined as “the seizure or modification of property rights by public power”10. In other words, expropriation, which is accepted as a legal institution in Turkish law, is also accepted as a legitimate and legal method in international investment law, provided that the conditions are complied with.
B. Direct Expropriation and Indirect Expropriation
It would be appropriate to explain the difference between the concept of expropriation in Turkish law and the concept of indirect expropriation in international investment law as “In Turkish law, expropriation is a lawful transaction carried out through administrative and judicial proceedings based on the Constitution and the Expropriation Law. On the other hand, indirect expropriation is generally unlawful as the condition of payment of compensation, which is one of the conditions for expropriation to be lawful, is not fulfilled”11. Unlike expropriation, indirect expropriation may lack a legal basis. Indirect expropriation may be realized through the regulatory acts of the administration12 or as a result of the inaction of the administration1314. Indirect expropriation can manifest in many different forms. Examples include the revocation of previously issued business or construction licenses, non-issuance or non-renewal of licenses or free zone permits, disproportionate tax increases, criminal prosecution, arrest or deportation of the investor or key players in the investment, government interference in the management of the investment through the appointment of a person, and export bans15.
One of the most important differences between these two concepts is that while expropriation in Turkish law is the process of transferring plots16, land and other immovable property to the ownership of the state, in international indirect expropriation, the subject is not limited to the immovable property, but the investor’s business, movable property, rights arising from intellectual and industrial property law17.
The last difference between both expropriations is that in expropriation, the ownership of the immovable property is transferred to the state, whereas in indirect expropriation, the ownership remains with the investor, but the exercise of the rights arising from the ownership is significantly limited or completely eliminated1819.
In terms of the similarity between the two concepts, we can mention that both types of expropriation are carried out by public legal entities2021.
C. Indirect Expropriation and Interventions that cannot be considered as Expropriation
“Regarding the state’s expropriation of foreign investments, the issue of which type of expropriation is considered lawful and which type of expropriation is considered unlawful is controversial”22. Therefore, in each concrete case, the issue of which acts of the state will be taken within the scope of expropriation and which will not should be examined individually in the light of the principles mentioned in the Energy Charter Treaty, especially on the basis of Articles 10 and 13. In addition, as mentioned before, the subject of expropriation can be “real estate, movables, licenses, permits and contractual rights”23.
Although the general principles of the Energy Charter Treaty must be complied with in order for a lawful expropriation to take place, whether the necessary conditions are met will be determined by the arbitral tribunal’s examination of the concrete dispute24.
In determining whether expropriation has occurred in the concrete dispute, the arbitral tribunal applies the substantial deprivation test and decides accordingly25. In PSEG v. Turkey26, the arbitral tribunal emphasized that in order for expropriation to be considered expropriation, the investor must be substantially deprived of the rights related to its investment and lists these rights as “deprivation of control of the investment, of the dayto-day management and administration of the company, of the right to the distribution of income and profits, of the selection of the company’s managers and personnel, of the company’s property or of the control of all or part of such property”2728.
In another energy investment dispute, CMS Gas Transmission Company v. Argentina, the investor company applied to ICSID on the grounds of violation of the fair and equitable standard of treatment, non-arbitrary and non-discriminatory treatment and prohibition of expropriation without compensation29.
In the case at hand, the investor company became a 30% shareholder in TGN, a natural gas transmission company established in Argentina, as a result of privatization. According to the agreement, TGN will calculate the tariffs by converting US dollars to Argentine Pesos at the current exchange rate and will reflect the inflation difference in the tariffs to avoid any loss of profit. Although the necessary authorization for this price policy was obtained from the Argentine Energy Market for 35 years, the authorization was later revoked as a result of the devaluation in the country. Despite the investor’s 75% loss of profit, the tribunal ruled that there was no substantial deprivation and consequently no expropriation, on the grounds that “the investor retained control of its investment3031.
Whether interventions by the host state in foreign energy investments constitute expropriation has come up in various disputes32. In particular, there has been a significant increase in disputes regarding renewable energy investments in the last decade3334.
In these cases, the dispute is generally centered on whether the investor’s profits are significantly lower than expected as a result of the subsequent breach of prior commitments, particularly with respect to pricing, constitutes indirect expropriation.
In this context, we are of the opinion that it would be useful to briefly examine the first arbitration case based on the Energy Charter Treaty, Nykomb Synergetics Technology Holding AB (Nykomb) v. Latvia3536.
In 1997, Latvia announced that tariffs would be doubled in order to attract foreign investors in the electricity sector and made the necessary legislative amendments. In this context, Nykomb, which considered that investing in the host country would be a good opportunity, made the necessary investments, but the payment was not made as promised. Instead of double tariff, 75% more than the tariff in force was paid for the electricity produced37.
Nykomb then applied to the Stockholm Chamber of Commerce arbitration claiming a violation of Article 13 of the ECT. In this context, the arbitral tribunal did not interpret the change of the double tariff by the host state as indirect expropriation in violation of Article 13, but ruled that there was a violation of the protection of the investor’s justified expectations under Article 10 of the ECT38.
In the reasoning of the award, the arbitral tribunal stated that the host state only amended the generation license and did not confiscate the assets of the investor’s investment or intervene in the management of the investor’s investment, and therefore, although the protection of the investor’s justified expectations was violated, it concluded that there was no expropriation under Article 13 of the ECT39.
In conclusion, as mentioned in the above-mentioned arbitral awards, “It is possible to say that the threshold for the host State’s acts and actions to constitute an expropriation is generally perceived to be higher by arbitral tribunals. Therefore, it is possible that host States’ acts and actions that cannot be considered as expropriation may be characterized as contrary to the principle of fair and equitable treatment”40.
V. EXAMPLES OF INDIRECT EXPROPRIATION IN INTERNATIONAL BILATERAL INVESTMENT TREATIES
Since many actions and transactions are included in the concept of indirect expropriation, bilateral investment treaties do not enumerate examples in an exhaustive manner. By drawing a general framework, the scope of transactions that may harm the investment is tried to be expressed.
A. Expropriation in the Agreement between the Republic of Turkey and the Swiss Confederation on the Reciprocal Promotion and Protection of Investments
Article 5 of the bilateral investment treaty between Turkey and Switzerland stipulates that “The Contracting Parties shall not indirectly or directly expropriate or nationalize, or subject to similar measures, the investments of investors of the other Contracting Party, except where such investments are made for purposes of public interest and in a non-discriminatory manner and where adequate and effective compensation is paid in a timely manner and in accordance with the law. The amount of compensation shall be paid to the investor without delay and shall be freely transferable”. The phrase “shall not indirectly and directly expropriate or nationalize or subject to similar measures” in the said provision shows that nationalization is also within the scope of indirect expropriation, and that measures that are similar to expropriation or have similar effects to expropriation will also be considered as indirect expropriation. In other words, a sudden increase in taxes, the subsequent introduction of environmental regulations that did not exist when the investor initiated the investment and that will cause a great cost for the energy investment; actions such as cutting off the water, electricity, road of the energy investment facility has similar consequences to expropriation and therefore constitute indirect expropriation. Therefore, such actions by the state would constitute a breach of the bilateral investment treaty.
B. Expropriation under the Turkey-Kazakhstan Agreement on Reciprocal Promotion and Protection of Investments
Article 3 of this bilateral investment treaty41stipulates that “Neither Party shall subject the investments of investors of the other Party within its territory to nationalization, expropriation or similar practices which have the effect of nationalization, expropriation or similar effects, except in the public interest, non-discriminatory, timely, adequate and effective compensation and by lawful means and in accordance with the general principles set forth in Article 2 of this Treaty”. In the event of discriminatory treatment between a domestic investor and a Kazakhstani investor or between a foreign investor and a Kazakhstani investor, the Kazakhstani investor has the option to file a lawsuit in Turkish domestic courts, as well as to refer to the international responsibility of the Republic of Turkey based on this bilateral investment treaty, and to international arbitration as provided for in the said agreement.
C. Expropriation in the Agreement between the Government of the Republic of Turkey and the Government of the Republic of Korea on the Reciprocal Promotion and Protection of Investments
Article 6, paragraph 1 of the investment agreement concluded between the Republic of Korea and the Republic of Turkey42 stipulates that “Investments of citizens and companies of both Contracting Parties shall be made for the purpose of public interest and shall not be expropriated or subjected to measures similar to expropriation and nationalization, except in cases where it is necessary for the internal needs of the Host Country in a non-discriminatory manner and at the same time adequate and effective compensation is paid in a timely manner and in accordance with the law”. This provision, which stipulates public interest for expropriation, is similar to the expropriation provisions in Turkish legislation in this respect. Foreign investors may claim accountability from the host state under the terms of the international agreement in opposition to the expropriation process of the state that is unable to prove the public interest. The agreement also stipulates that the compensation to be awarded for wrongful expropriation must be adequate and effective. In terms of compensation, the provision of effective compensation means that the host state will not be able to pay the compensation many years later in a worthless currency. The adoption of the Hull Formula43, which is now accepted as international law, is demonstrated by the requirement of adequate compensation rather than acceptable compensation. This opens the door for the foreign investor to recover all damages suffered.
D. Expropriation in the Agreement between the Republic of Turkey and Japan on the Reciprocal Promotion and Protection of Investments
Article 5, paragraph 3 of Turkey’s energy investment agreement with Japan44 states that “The compensation referred to in the provisions of paragraph 2 of this Article shall correspond to the normal market value of the investment and its proceeds on the date of the commencement or announcement of the expropriation, nationalization or measures having an equivalent effect, whichever is earlier, but shall not take into account any reduction in market value due to expectations of the eventual confiscation. Such compensation shall be paid without delay and shall include appropriate interest for the period up to the time of payment. Such compensation shall be convertible into cash and shall be freely transferable and shall be paid in such a manner as to prevent citizens and companies from being in a less favorable position than they would have been had the compensation been paid at the time of the expropriation, nationalization or measures having a similar effect”.
When rumors of expropriation arise, the value of the invested enterprise drops significantly. Since this creates a disadvantageous situation for foreign investors, the fair market value before the rumors of expropriation is taken as the basis for determining the compensation. The payment of compensation without delay is related to the concept of effective compensation and is stipulated in the agreement in order to prevent an increase in the loss due to both the depreciation of the currency and the late receipt of the compensation by the investor.
E. Expropriation in the Agreement between the Government of the Republic of Turkey and the Belgium-Luxembourg Economic Union for the Reciprocal Promotion and Protection of Investments
Article 4, paragraph 3 of the bilateral investment treaty45 stipulates that “Compensation shall be freely transferred to the country of origin of the citizen or company and in the currency in which the investment was made, or to any other country agreed upon by the citizen or company and the Contracting State and in any convertible currency, to be carried out efficiently”. The provision stipulates that the compensation to be paid following unjust and unlawful expropriation shall be paid in a convertible currency, that is, in a currency that can be circulated in international markets and has a certain value in the markets. In the past, Latin American countries offered to “pay in coal” as compensation for the French investments they expropriated when they declared their independence, but this was rejected by the investors as coal was not a convertible currency. Therefore, this agreement emphasizes that payments cannot be made in such non-monetary commodities or values.
VI. EXPROPRIATION IN THE ENERGY CHARTER TREATY
In order to avoid sanctions arising from unlawful expropriation transactions, states prefer to intervene indirectly by taking actions that reduce the profits of foreign investment, make it difficult and to a large extent prevent the continuation of the investment, instead of explicitly expropriating directly. Therefore, in order to prevent this and protect investors’ international investments worldwide, indirect expropriation is prohibited in many international investment treaties.
Turkey signed the Energy Charter Treaty in Lisbon on December 17, 1994, becoming the 42nd country to ratify this treaty, which is of great importance in protecting foreign energy investments from host state interventions. The purpose of the Energy Charter Treaty, which is of critical importance for the protection of foreign investors and the promotion of investment, can be listed as “increasing the security of energy supply, maximizing the efficiency of energy production, conversion, transportation, storage, distribution, transmission and use, strengthening security and minimizing environmental problems, encouraging and protecting investments, liberalizing energy trade and accessing international and national capital markets”46.
Article 10, paragraph 1 of the Energy Charter Treaty: “Each Contracting Party shall, in accordance with the provisions of this Treaty, promote and establish stable, fair, favorable and transparent conditions for Investments in its Area by Investors of other Contracting Parties. Such conditions shall include a commitment to ensure at all times fair and equitable treatment of Investments by Investors of other Contracting Parties. In addition, such Investments shall enjoy stable and continuous protection and security, and no Contracting Party shall in any way, by unreasonable or discriminatory measures, act in a manner that creates inequality in the administration, maintenance, benefit, right to use or transfer of Investments. In no case shall such Investments be subjected to procedures that are less favorable than the requirements imposed by international law, including Treaty obligations. Each Contracting Party shall fulfill the obligations undertaken by an Investor or Investors of another Contracting Party with respect to an Investment.’’47 emphasizes that the host state’s treatment of the investor must be fair and equitable and protect the investor’s justified expectation, and even if the interventions are not so severe as to constitute indirect expropriation, the investor may claim compensation for the damages incurred by claiming that the intervention is contrary to this article.
Again, the first paragraph of Article 13 of the Energy Charter Treaty: ‘’ Investments by Investors of one Contracting Party in the Area of another Contracting Party
(a) for a purpose of public interest
(b) without discrimination
(c) carried out entirely in accordance with the law
(d) timely, adequate and effective compensatory payments will be made;
shall not be nationalized, expropriated or subjected to a measure or measures equivalent to nationalization or expropriation (hereinafter referred to as “Kamulaştırma-Expropriation”). Such compensation shall be in an amount equal to the fair market value of the expropriated Investment at the time immediately preceding the Expropriation or any pending Expropriation affecting the value of the Investment (hereinafter referred to as the “Değer Tespit Tarihi-Valuation Date”). Such fair market value shall be expressed in free convertible currency at the Investor’s request, based on the market exchange rate of the relevant currency on the Valuation Date. Compensation shall also include interest at a commercial rate determined at market conditions from the date of Expropriation until the date of payment.48’’ by stipulating that the host state may resort to expropriation only in the presence of certain conditions, and that the investor shall be compensated for the damages incurred. Therefore, the protection of the foreign investor has been ensured and foreign investment has been encouraged.
VII. CONCLUSION
In conclusion, expropriation, which has a very important place among the economic, cultural and political risks that foreign investors face in the host state, has been the subject of both national legislation and international agreements. In many bilateral and multilateral investment treaties, expropriation is deemed lawful only if the existence of public interest is proven, if effective, adequate and timely compensation is paid, if it is carried out duly and without discriminatory treatment. In the absence of direct expropriation, host states have resorted to indirect expropriation by “circumventing the law”, but arbitral tribunals have considered each concrete dispute individually and awarded compensation against the host state in order to protect foreign energy investment in cases where indirect expropriation is found to exist. In cases where the interference by the host state is not severe enough to be considered as indirect expropriation, the tribunals have awarded compensation against the host state for lack of equal and fair treatment or violation of the right to a justified expectation based on Article 10 of the Energy Charter Treaty. In this way, foreign energy investments have been protected and promoted and investors have been provided with legal guarantees
BIBLIOGRAPHY
ALİ OSMAN KARAOĞLU, Yabancı Yatırımların Korunmasında Uluslararası Hukukun Rolü, First Edition, İstanbul 2019.
ALPER ÇAĞRI YILMAZ, Enerji Yatırımları ve Uluslararası Koruma Standartları, Ankara 2012.
BAĞDAGÜL KAYA CANER, Enerji Yatırımlarından Doğan Uyuşmazlıklarda Uluslararası Tahkim, Ankara 2021. BİLGİN TİRYAKİOĞLU, Doğrudan Yatırımların Uluslararası Hukukta Korunması, Dayınlarlı Hukuk Yayınları, Ankara 2003.
HÜMEYRA ZEYNEP ERDEN, “Milletlerarası Yatırım Hukukunda Dolaylı Kamulaştırma”, İstanbul 2015.
KAZEM DEHGHANSOMEH, İran Hukuk Sisteminde Doğrudan Yabancı Yatırımlarda Yatırıma El Konulması, İstanbul 2015.
MELTEM KUTLU GÜRSEL, Kamulaştırma Hukuku, Seçkin Yayınları, Ankara 2009.
MUSTAFA EMİR/ AHMET KURTARAN, “Doğrudan Yabancı Yatırım Kararlarında Politik Risk Unsuru”, Muhasebe ve Finans Dergisi, Issue. 28, Ekim 2005.
ZEYNEP FIRTINA, ENERJİ SEKTÖRÜNDE ÖZEL KİŞİLER LEHİNE KAMULAŞTIRMA: Elektrik Piyasası Özelinde İnceleme, Yüksek Lisans Tezi, Ankara 2009. https://www.resmigazete.gov.tr/eskiler/2000/07/20000712M1-6.pdf.
FOOTNOTE
1 Alper Çağrı Yılmaz, Enerji Yatırımları ve Uluslararası Koruma Standartları, Ankara, 2012, p. 24.
2 Dolzer Rudolf/ Schreuer Christoph, Principles of International Investment Law, Oxford University Press, New York 2008, p. 60; Schreuer Christoph H., The ICSID Convention: A Commentary, Cambridge University Press, Cambridge 2001, s. 135; Salacuse, Jeswald W., The Law of Investment Treaties, 2010, p. 18; Schreuer Christoph H., The Dynamic Evolution of the ICSID System, The Convention on the Settlement of Investment Disputes between States and Nationals of Other States: Taking Stock after 40 Years, Nomos Verlagsgesellschaft, (Ed. Rainer Hofmann/ Christian J. Tams), Baden 2007, p. 4.
3 Yılmaz, p. 25.
4 Bilgin Tiryakioğlu, Doğrudan Yatırımların Uluslararası Hukukta Korunması, Dayanırlı Hukuk Yayınları, Ankara 2003, p. 10.
5 Yılmaz, p. 32.
6 Kazem Dehghansomeh, İran Hukuk Sisteminde Doğrudan Yabancı Yatırımlarda Yatırıma El Konulması, Master’s Thesis, İstanbul 2015, p. 4.
7 Mustafa Emir/ Ahmet Kurtaran, “Doğrudan Yabancı Yatırım Kararlarında Politik Risk Unsuru”, Muhasebe ve Finansman Dergisi, S. 28, 2005, p. 4.
8 Meltem Kutlu Gürsel, Kamulaştırma Hukuku, Seçkin Yayınları, Ankara 2009.
9 Zeynep Fırtına, Enerji Sektöründe Özel Kişiler Lehine Kamulaştırma: Elektrik Piyasası Özelinde İnceleme, Master’s Thesis, Ankara 2009, p. 37.
10 Black’s Law Dictionary, 9th Edition, St. Paul, Thomson West, 2009, p. 662.
11 Hümeyra Zeynep Erden, Milletlerarası Yatırım Hukukunda Dolaylı Kamulaştıma, İstanbul, 2015, p. 116- 117.
12 Örneğin bkz. Biloune v. Ghana, s. 183-211; Metalclad v. Mexico, para. 31, 35, 38; Siemens v. Argentina, para. 271.
13 Örneğin bkz. Benvenuti et Bonfant v. Congo, para. 4.24-4.37; Fireman’s Fund Insurance v. Mexico, para. 176/1, dn. 155.
14 Erden, p. 117.
15 Erden, p. 117.
16 Kamulaştırma Kanunu (m. 1/1).
17 Erden, p. 117.
18 Middle East Cement Shipping v. Egypt, para. 107; Tippetts, para. III/1.
19 Erden, p. 119.
20 For Turkish Law Anayasa (m. 46/1); Kamulaştırma Kanunu (m. 1/1). For international investment law. Sornarajah, p. 375; Tiryakioğlu, Doğrudan Yatırım, p. 192.
21 Erden, p. 119.
22 Bağdagül Kaya Caner, Enerji Yatırımlarından Doğan Uyuşmazlıklarda Uluslararası Tahkim, Ankara, 2021, p. 192-193.
23 Kaya Caner, p. 193.
24 Kaya Caner, p. 195.
25 Kaya Caner, p. 195.
26 PSEG Global Inc. And Konya Ilgin Elektrik Üretim ve Ticaret Limited Şirketi v. Republic of Turkey, ICSID Case No. ARB/02/5.
27 Kaya Caner, p. 195-196.
28 PSEG Global Inc. And Konya Ilgin Elektrik Üretim ve Ticaret Limited Şirketi v. Republic of Turkey, ICSID Case No. ARB/02/5, Decision, 19.01.2007.
29 Kaya Caner, p. 196.
30 Kaya Caner, p. 197.
31 CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, Decision, 12.05.2005, para. 263-264.
32 Kaya Caner, p. 197.
33 The PV Investors v. Spain (UNCITRAL), Charanne (the Netherlands) and Construction Investments (Luxembourg) v. Spain (SCC), Isolux Infrastructure Netherlands B.V. v. Spain (SCC), CSP Equity Investment S.à.r.l. V. Spain(SCC), RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à.r.l. V. Spain (ICSID Case No. ARB/13/30), Antin Infrastructure Services Luxembourg S.à.r.l. And Antin Energia Termosolar B.V. v. Spain (ICSID Case No. ARB/13/31), Eiser Infrastructure Limited and Energia Solar Luxembourg S.a.r.l. V. Spain (ICSID Case No. ARB/13/36), Masdar Solar & Wind Cooperatief UA v. Spain (ICSID Case No. ABR/14/01), nextera Energy Global Holdings B.V. and nextera Energy Spain Holdings B.V. v. Spain (ICSID Case No. ABR/14/11), ınfrared Environmental Infrastructure GP ltd. Et al v. Spain (ICSID Case No. ABR/14/12), Renergy S.à.r.l. V. Spain (ICSID Case No. ABR/14/18) are some of these cases.
34 Kaya Caner, p. 197.
35 Nykomb Synergetics Technology Holding AB (İsveç) v. Letonya, Karar, Stokholm Ticaret Odası Tahkim Enstitüsü, 16.12.2003, p. 33.
36 Kaya Caner, p. 198.
37 Kaya Caner, p. 198-199.
38 Kaya Caner, p. 199.
39 Kaya Caner, p. 199.
40 Kaya Caner, p. 200.
41 Agreement on Reciprocal Promotion and Protection of Investments between the Republic of Turkey and the Republic of Kazakhstan published in the Official Gazette dated 11.02.1995 and numbered 22199.
42 Agreement on Reciprocal Promotion and Protection of Investments between the Government of the Republic of Turkey and the Government of Republic of Korea published in the Official Gazette dated 02.05.1994 and numbered 21922.
43 Ali Osman Karaoğlu, Yabancı Yatırımların Korunmasında Uluslararası Hukukun Rolü, İstanbul 2019, p. 21.
44 Agreement on Reciprocal Promotion and Protection of Investments between the Republic of Turkey and Japan published in the Official Gazette dated 16.01.1993 and numbered 21467.
45 Agreement on Reciprocal Promotion and Protection of Investments between the Government of the Republic of Turkey and the Belgium-Luxemburg Economic Union published in the Official Gazette dated 08.10.1989 and numbered 20306.
46 https://www.resmigazete.gov.tr/ eskiler/2000/07/20000712M1-6.pdf.
47 Avrupa Enerji Şartı Konferansı Nihai Senedi, Enerji Şartı Antlaşması Ve Ekini Teşkil Eden Kararlar İle Enerji Verimliliğine Ve İlgili Çevresel Hususlara İlişkin Enerji Şartı Protokolünün Onaylanmasının Uygun Bulunduğu Hakkında Kanun published in the Official Gazette dated 06.02.2000 and numbered 23956 Article. 10/1.
48 06.02.2000 tarihli ve 23956 sayılı Resmi Gazete’de yayımlanan Avrupa Enerji Şartı Konferansı Nihai Senedi, Enerji Şartı Antlaşması Ve Ekini Teşkil Eden Kararlar İle Enerji Verimliliğine Ve İlgili Çevresel Hususlara İlişkin Enerji Şartı. Protokolünün Onaylanmasının Uygun Bulunduğu Hakkında Kanun m. 13/1.
