BITs and Pieces of Property
52 Pages Posted: 19 Feb 2010 Last revised: 18 Jan 2011
Date Written: January 16, 2011
Abstract
Property law today faces what may be its greatest challenge ever: changing from a domestic legal institution into one that accommodates globalization. Central to this trend are bilateral investment treaties (BITs), which seem to offer an optimal solution for the protection of foreign investors’ property rights by reducing uncertainty and enhancing the credibility of states’ commitments. We argue, however, that the notion of property is significantly more complex than what first meets the eye. The move to a “property discourse” in connection with foreign investment under a BIT regime consequently may become complex and uncertain. This Article thus breaks ranks from conventional wisdom by pointing to crucial aspects of heterogeneity in property law and identifying the intricacies of BIT property protection. We present new empirical evidence on the link between cultural heterogeneity and property rights protection, showing that such protection depends on the level of cultural autonomy—a cultural orientation that emphasizes individuals’ uniqueness. We then analyze several additional facets of heterogeneity with regard to actors, assets, and legal norms, all of which underscore the complexity of property systems.
Keywords: Property rights, BITs, FDI, international law, culture
JEL Classification: F21, F55, K11, K33
Suggested Citation: Suggested Citation
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