Case Comment: Les Laboratoires Servier, SAA, and Others v Republic of Poland - Defining the Nature of the Police Powers ‘Defence’ and the Deference Applicable in Regulatory Expropriation Cases

Abstract

Though the indirect expropriation analysis of the Tribunal is obscured by the redactions made to the Award in Les Laboratoires Servier, SAA, and others v Republic of Poland, the unredacted parts of its analysis are noteworthy because they illustrate the points of the Tribunal’s enquiry at which it tempered its analysis to be more or less deferential to the determinations and regulatory autonomy of Poland. The Tribunal’s reasoning highlights three points of the indirect expropriation analysis in respect of which the Tribunal sought to strike a balance between the public (regulatory) interests of Poland and the private (proprietary) interests of the Claimants. These points are considered in turn in this case-note, which examines the Tribunal’s analysis of the threshold effect required for a finding of expropriation, and the Tribunal’s determination as to the burdens of proof and deference applicable as part of a police powers enquiry.

Keywords: expropriation, deference, police powers, scope of review, balance, burden of proof