This article examines the notion of judicial takings in international law and its reflection in the practice of investment tribunals. It takes stock of the already significant body of arbitral jurisprudence dealing with expropriation claims grounded in, or relating to, the acts or omissions of courts, with a view to developing a coherent theory of judicial expropriations. It is suggested that, due to the courts’ specific role in the determination of the underlying proprietary rights that are the very object of international legal protection, judicial measures warrant different conceptual treatment from measures by other State organs. Traditional approaches to expropriation analysis do not take this sufficiently into account and therefore do not provide adequate tools for distinguishing legitimate judicial measures from undue interferences with investors’ rights. It is argued that a sui generis approach is hence needed: where proprietary rights are primarily affected by the impugned judicial action, it is first necessary to determine whether such action is itself wrongful under international law, for only then can it be treated as an act of expropriation. However, the proper analytical approach will ultimately depend on the circumstances of each case and traditional approaches, such as the sole effects doctrine, may still be appropriate where the judicial injury actually flows from wrongful legislative or executive conduct.

This article revisits the core difficulties with the international delict known as a denial of justice and, drawing insights from philosophical writing on adjudication, offers novel solutions to three principal issues: (a) the scope of the acts and omissions that can form the predicate conduct for a denial of justice; (b) the proper threshold for liability in respect of those acts or omissions; (c) the relationship between denial of justice and other international norms impacting upon domestic adjudication. The article concludes with a restatement of the law of denial of justice.

Denial of Justice — Meaning of — Acts of Non-Judicial Authorities — Whether Constituting Denial of Justice — Effect on Calvo Clause.

Denial of Justice — Undue Delay of Justice — Meaning of — Effect on Calvo Clause.

Measure of Damages — Denial of Justice — Failure to Inflict Adequate Punishment.

Denial of Justice — Failure to Inflict Adequate Punishment — Assault on Alien by Policeman — Measure of Damages.

Denial of Justice — Interference with Property Rights.

Diplomatic Envoys — Functions of — Assistance of Individuals in Settling Differences with Government — How far Estopping Home State from Putting Forward Claims.

Arbitration — Evidence — Estoppel.

State Responsibility — In General — Limitations of — Estoppel — Settlement Achieved with the Assistance of a Diplomatic Officer — Effect on Claim before Arbitral Tribunal — Diplomatic Action Following upon Authorisation of Individual Claimant Alone — Denial of Justice as a Result of Interference with Property Rights.

Denial of Justice — Exhaustion of Legal Remedies — Adequacy of Legal Remedies — Burden of Proof in Arbitration Proceedings.

Territory — Annexation of — Meaning of — State Succession — Respect of Private Rights Acquired Prior to Annexation.

Denial of Justice — Exhaustion of Local Remedies — Cases when Not Required.

Nationality of Claims — Claims on Behalf of Nationals of Defendant State — Inadmissibility of.

Measure of Damages — Standards of Valuation — Speculative Enterprises.

State Responsibility — Consequences of — Restitution or Compensation.

State Responsibility — Consequences of — Reparation Due to Claimant Government as Distinguished from Compensation to Private Persons.

State Responsibility — Award of Interest — Dies a quo.

Treaties — Treaties and Third Parties — Acquisition of Rights by Virtue of a Treaty to which the State was not a Party.

Treaties — Interpretation of — Reference to Other Contemporaneous Treaties — Relevance of Unratified Treaties.

Arbitration — Jurisdiction of Arbitral Tribunals — Competence to Decide on Rights Grounded in Municipal Law.

State Succession — Respect of Private Rights — State Succession and Protection of Contractual Rights — Proof of Private Rights — Respect of Private Rights Acquired Prior to Annexation — Meaning of the Term “Annexation” — Reference to Other Contemporaneous Treaties — Relevance of Unratified Treaties — Acquisition of Rights by Virtue of a Treaty to which the State was not a Party — Incorporation of One Treaty in a Subsequent Treaty — Competence of International Tribunals to Decide on Rights Grounded in Municipal Law — Exhaustion of Local Remedies — Nationality of Claims — Restitution or Compensation — Measure of Damages — Standards of Valuation — Speculative Enterprises — Reparation Due to the Claimant Government as Distinguished from Compensation to Private Persons — Interest.

Dependent States — Relation of Suzerainty — International Liability of the Suzerain.

Responsibility of States — In General — Responsibility of the Suzerain — Responsibility of Great Britain for the Liabilities of the South African Republic.

Denial of Justice — Denial of Incomplete Rights — Executive Decrees Contrary to the Constitution.

Exhaustion of Legal Remedies — When Unnecessary — Absence of Prospect of Redress.

State Succession — Liabilities for Wrongs — Duty to Take Affirmative Measures to Redress Wrongs — Denial of Justice — When Principle not Applicable — Denial of Incomplete Rights — Exhaustion of Legal Remedies — Liabilities of the Suzerain — Liabilities of Great Britain as Suzerain for Delinquencies of the South African Republic.

Corporations — Nationality of — Claims in respect of Juridical Persons of Foreign Nationality Composed in Part of Nationals of the Claimant State.

Denial of Justice — Exhaustion of Legal Remedies.

Denial of Justice — Equality of Treatment of Citizens and Aliens — Grounds of Impugning Judgments of National Courts.

Denial of Justice — “Exhaustion of Legal Remedies” — Meaning of the Term.

Denial of Justice — Failure to Prosecute — Release without Trial.