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The International Law of Property

  • José E. Alvarez (a1)

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On the surface, the two books under review seem to have little in common. The Bonnitcha/Poulsen/Waibel (BPW) book, written by two legal academics and a political scientist, provides a balanced, fact-grounded account of international investment agreements (IIAs) and investor-state dispute settlement (ISDS). This is the “international treaty regime” in that book's title which the authors argue needs to be distinguished from the broader “international regime complex” that their book explicitly does not address, namely the number of other international instruments that at least incidentally also protect foreign investments (including, for example, political risk insurance, tax treaties, certain World Trade Organization agreements, and certain human rights treaties like the European Convention on Human Rights (ECHR)) (p. 7 and Figure 1.2). As one of the encomiums on its back cover page suggests, the BPW book seeks to answer the fraught competing contentions of defenders and critics of the regime that all too frequently generate “more heat than light.” Their book dispassionately synthesizes the available legal, economic, and political literature relevant to understanding the investment treaty regime's oft-proclaimed “legitimacy crisis.” It seeks to supply lawyers needing political context and political scientists needing legal knowledge with the unfiltered facts required to assess whether such a “crisis” exists and, if so, what the ways forward might be.

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1 See, e.g., Simpson, George G., The Principles of Classification and a Classification of Mammals, 85 Bull. Am. Museum Nat. Hist. 1, 23 (1945) (“Splitters make very small units—their opponents say that if they can tell two animals apart, they place them in different genera, and if they cannot tell them apart, they place them in different species. Lumpers make large units—their opponents say that if a carnivore is neither a dog nor a bear they call it a cat.”).

2 Hernando de Soto, The Other Path (1989).

3 See Guzman, Andrew T., Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 Va. J. Int'l L. 639 (1998).

4 See Stephan W. Schill, The Multilateralization of International Investment Law (2009).

5 See, for example, BPW at 84 (“If mutually beneficial solutions existed, one would expect the parties to be able to negotiate settlement privately without any need for mediation or conciliation.”).

6 Upham cites to Coase, Ronald H., The Problem of Social Cost, 1 J. L. & Econ. 3 (1960); Demsetz, Harold, Toward a Theory of Property Rights, 57 Am. Econ. Rev. 347 (1967); Douglas North, Institutions, Institutional Change and Economic Performance (1981). Upham, at 1.

7 Upham is referring to the theories propounded by Coase and Demsetz (supra note 6)—namely the propositions that private property (e.g., ownership in beaver fur) is economically efficient to the extent it helps internalize negative externalities (e.g., the decline in beavers due to hunting) while reducing the transactions costs of enforcing such rights. For one attempt to describe the insights of Coase and Demsetz and enumerate the misunderstandings generated by them, see, e.g., Douglas W. Allen, Transaction Costs, Encyclopedia L. & Econ. 893 (1998).

8 See, e. g., Vandevelde, Kenneth, Investment Liberalization and Economic Development: The Role of Bilateral Investment Treaties, 36 Colum. J. Transnat'l L. 501 (1998).

9 See, e.g., Koskenniemi, Martti, Empire and International Law: The Real Spanish Contribution, 61 U. Toronto L.J. 1 (2011); Koskenniemi, Martti, Sovereignty, Property and Empire: Early Modern English Contexts, 18 Theoretical Inquiries 355 (2017); Koskenniemi, Martti, International Law and the Emergence of Mercantile Capitalism: Grotius to Smith, in The Roots of International Law 3 (Dupuy, Pierre-Marie and Chetail, Vincent eds., 2014).

10 See, e.g., Alvarez, José E., The Human Right of Property, 72 U. Miami L. Rev. 580, 690 (2018) (Appendix of Significant International Instruments Recognizing the Right to Property in International Law).

11 Id. See generally John G. Sprankling, The International Law of Property (2014).

12 See, e.g., Rep. and Op. of Prof. Joseph H.H. Weiler, at 4, 9–11, Mezerhane v. República Bolivariana de Venezuela, No. 1:11-CV-23983-MGC, ECF No. 59-1 (S.D. Fla. Nov. 30, 2012); Sprankling, John G., The Global Right to Property, 52 Colum. J. Transnat'l L. 464, 495–97 (2014).

13 See, e.g., Sprankling, supra note 12, at 485, 492–93 (noting that 95% of the nations of the world guarantee the right to property under their national laws, commonly in their constitutions).

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The International Law of Property

  • José E. Alvarez (a1)

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