Rethinking Expropriation Law
Reconciling the protection of property and the public interest, just compensation and the governance of expropriation
The fifth conference on Expropriation Law, hosted by the University of Silesia and the University of Economics (Katowice, Poland) in collaboration with the Groningen Centre for Law and Governance (GCLG), the University of Cape Town, the University of Johannesburg, and the Radboud University in Nijmegen is an opportunity to rethink and further explore issues that have been identified as core to expropriation, in an attempt to reconcile the various interests at play. The two key aspects that demand in-depth consideration when analyzing expropriation are: the reconciliation of property protection with the public interest and rethinking just compensation in the context of the governance of expropriation. Each of these matters requires separate examination. However, their interplay will often determine whether expropriation is an unbiased instrument employed in order to further the public interest.
Thus, the organizers of the conference hope to explore the following aspects of expropriation, with the aim of considering them in a complex setting of property rights, valuation difficulties, challenges of properly defining the public interest and adequately shaping both private and public law provisions (substantive and procedural) regulating expropriation:
TOPICS
1. Protection of property, expropriation and governance.
Expropriation is mainly associated with the complete loss of land ownership. However, in a wider economic sense, it also concerns instances of limiting property entitlements by various means, like introducing restricted use areas (vicinity of airports, roads, railways, production plants) which may significantly curtail the right of ownership. It is therefore useful to consider expropriation sensu stricto and sensu largo to reflect the plethora of mechanisms the legislator employs to achieve aims that are more or less directly connected with the public interest. In this context, it is also useful to consider the administrative procedure employed when implementing the provisions in force, as lengthy and costly procedures will effectively defeat the objective of providing just compensation. An economic evaluation of expropriation will help in the assessment of whether interference with private property is a proportional measure to the objective that is to be achieved. The governance of expropriation is thus a key issue. Numerous ECtHR expropriation cases show that for various reasons the proportionality requirement is often violated leading to an unacceptable infringement of property. This begs the question of whether property and private interests are truly protected and respected in the process of expropriation. If not, one must consider the source of the problem – is it lack of proper governance, wrongly defined notions and premises, or a combination of both? The imperium powers of the state and the dominium entitlements of the individual must be balanced, if the expropriated party is to be able to effectively question or resist unlawful expropriation.
2. (Im)perfect valuation? Calculating compensation and determining its scope.
Continuing the topic of the fourth annual colloquium on Expropriation Law (Dec 2016, held at the University of Cape Town) it is necessary to explore the connection between legal provisions defining (in various degrees of specificity) the bases of calculating compensation and the actual economic methodology as well as the underlying economic assumptions employed by expert real estate valuers. The bases of value (market value, fair value, individual value, value of demoralization, etc.) require careful consideration in the light of law and economics if one is to determine what just or fair compensation truly denotes. European legislation, valuation standards (European and international) along with soft law concerning compensating for expropriation (e.g. FAO guidelines) all need to be examined if effective legal provisions are to be crafted and adequately reflected in practice. The dependence of courts or administrative bodies on valuations, the scope and manner of admissible negotiations, the role of the valuer as an expert witness, the scope of compensation, reliability of valuations, standardization of valuations, predictability and consistency of valuations all require consideration from a legal, economic and professional points of view if tools of fair compensation are to be developed and implemented. The usefulness of the market value must be analyzed in the context of the fact that loss is individual and may be larger or smaller than what the market dictates. This again leads to the fundamental question of fair vs. full compensation and where the line must be drawn.
3. How public is public?
The public interest is one of the most elusive concepts of expropriation. Different jurisdictions adopt various approaches to determining which purpose classifies as public. Yet public or private is not an empirical statement, but a statement of opinion that cannot be judged as true or false. Therefore, exploring the publicity requirement in the context of public, quasi-public and private entities wishing to make use of expropriation is of paramount importance. Politics and the economic system (liberal, conservative, with or without elements of the social role of property) greatly influence the concept of the public purpose within a given jurisdiction. Simultaneously, the question that always remains is deciding to what extent private entities may benefit from expropriation if its public element is to remain the predominant expropriation premise. Contemplating the public purpose thus requires considering constitutional and property law, the economic foundations of the legal and political system in place, the changing perception of what is public, the interdependence of public and private uses, entities and goals.
Special sessions (more suggestions welcome):
Expropriation and land use restrictions in the vicinity of airports – compensating landowners for airport nuisance
Practical problems of calculating compensation
valuation case studies of market and non-market losses connected with expropriation
compensating expropriation designed to achieve social reform (e.g. in the context of political transformation in Central and Eastern Europe, the Republic of South Africa)
Expropriation of property vs. transformative regime changes and the issue of compensation (e.g. changes in the ownership of minerals)
Expropriation for economic development – problems of governance and legal justifications.
Expropriation and spatial planning – decisions on what to expropriate.