y 2006 en el sector agrícola y ganadero constituyeron una expropiación ilegítima de los
bienes de los inversores contraria al art. 5 del APPRI celebrado entre el Reino Unido y
Venezuela:
“292. On the basis of this analysis, it is clear that Respondent has never placed Vestey in a procedural setting in which Venezuelan law would have required to show the chain of title. In conclusion, by the time of the measures, Vestey had acquired the full ownership title over the contested land. Therefore, the government’s takeover of control over Agroflora’s property and administration constitutes an expropriation within the meaning of Article 5 of the BIT.
293. Article 5 of the BIT requires that an expropriation be “for a public purpose related to the internal needs of the Party”. The Respondent accepts that "[p]ursuant to Article 5 the [state's] actions must be for a declared public purpose".262 In other words, there must be a public purpose and the measure must be aimed at achieving that purpose.
294. The Tribunal must thus first assess whether there existed a public purpose. It concurs with the Respondent that for purposes of this assessment states deserve broad deference. In the words of the LIAMCO tribunal, the state is “free to judge for itself what it considers useful or necessary for the public good”. International tribunals should thus accept the policies determined by the state for the common good, except in situations of blatant misuse of the power to set public policies. 295. Here, the Respondent submits that its purpose was “to ensure the availability and timely access to food by its citizens, as part of its national plan to ensure food selfsufficiency”. It also submits that “the widespread access to agricultural and livestock resources […] make[s] up one of the main drivers of the Bolivarian Republic of Venezuela’s food strategy to provide resources to its population”. The Tribunal defers to this policy determination. In any event, that policy appears perfectly legitimate and worth of protection and there is no suggestion in the record that it was not.
296. This finding, however, does not end the inquiry. The Tribunal must also assess whether the impugned expropriatory measure was “for” the public purpose as Article 5(1) of the BIT requires. In doing so, it must consider all the relevant circumstances, including the government’s post-expropriation conduct. While the objective is not to review the effectiveness of the measures, the government’s failure to advance a declared purpose may serve as evidence that the measure was not taken in furtherance of such purpose. Thus, the idea is to determine whether the measure had a reasonable nexus with the declared public purpose or in other words, was at least capable of furthering that purpose.
300. On this basis, the least that the Tribunal can say is that the nexus between Venezuela’s declared purpose to achieve wider public access to food and the expropriation of Agroflora is not obvious. That being so, the Tribunal can dispense with a definitive ruling on this requirement in light of the conclusion reached in the following section.
301. It is a common ground between the Parties that Article 5(1) of the BIT guarantees an opportunity for an investor “to prompt review, by a judicial or other independent authority, of his or its case”. That guarantee also applies to an independent review of the “valuation of his or its investment”.
(…)
303. Venezuela’s Expropriation Law provides detailed procedural guarantees. It requires that compensation for expropriation be determined by a commission of three experts, and requires the state to initiate a judicial action to expropriate an asset. This legal regime differs drastically from that of the Land Law. The rescate proceedings under the Land Law are based on the premise that the land is state property and, therefore, the state owes no compensation to the persons from whom the land is recovered. It goes even further by denying the right to compensation for any improvements found on the recovered land: “The persons illegally occupying the public land, which is susceptible of recovery, cannot claim any indemnity for any improvement or fruits present at the occupied land”.
(…)
305. By introducing and applying the Land Law to Vestey’s investment and thereby derogating from the procedural guarantees of the Expropriation Law, Venezuela deprived Vestey not only of the opportunity to have the valuation of its investment reviewed by an independent authority, but of the right to be compensated altogether. The regime provided by the Land Law fails to satisfy the due process requirements of the BIT.
(…)
310. The Respondent does not dispute that it paid no compensation to Vestey, but insists that it offered to do so. Whether compensation was offered would be relevant if the Tribunal were to assess the lawfulness of the expropriation. However, the Tribunal has already found that the expropriation was unlawful because it failed to comply with at least one other cumulative requirement of legality. This finding could end the inquiry under Article 5 of the BIT. However, as stated above, the Tribunal will nevertheless briefly discuss the requirement of compensation for the sake of completeness.
(…)
312. The Tribunal is not convinced that an offer to pay a price to buy a company can be assimilated to an offer to compensate for the expropriation. Article 5(1) of the BIT requires the expropriation to be “against prompt, adequate and effective compensation.” The sales negotiations took place over one year prior to the rescate. One can hardly see how a price offer made in that context could relate to compensation for the expropriation. The fact that the sales negotiations failed, for whatever reason, did not release Venezuela from its obligation under Article 5(1) of the BIT to provide compensation for expropriation.
(…)
316. The Tribunal therefore concludes that Venezuela failed to provide compensation for the expropriation of Vestey’s assets”.