BITs and Pieces of Property

52 Pages Posted: 19 Feb 2010 Last revised: 18 Jan 2011

See all articles by Amnon Lehavi

Amnon Lehavi

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law

Amir N. Licht

Reichman University; European Corporate Governance Institute (ECGI)

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

Lehavi, Amnon and Licht, Amir N., BITs and Pieces of Property (January 16, 2011). Yale Journal of International Law, Vol. 36, p. 115, 2011, Available at SSRN: https://ssrn.com/abstract=1554926

Amnon Lehavi

Reichman University - Interdisciplinary Center (IDC) Herzliyah - Harry Radziner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel
972 9 9602765 (Phone)
972 9 9568605 (Fax)

HOME PAGE: http://www.idc.ac.il

Amir N. Licht (Contact Author)

Reichman University ( email )

Israel

European Corporate Governance Institute (ECGI)

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium
952-9-9513323 (Fax)

HOME PAGE: http:/www.ecgi.org

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