The importance of property in international investment law

Abstract This article argues, focusing on the protection from expropriation, that international investment law is fundamentally about the protection of foreign investors’ proprietary rights, although this point has often been missed in academic literature and tribunal practice. The paper argues that as property is generally understood to be shaped and created by domestic law, a better understanding and application of domestic law is necessary in order to rebalance international investment law (IIL). In addition, this article demonstrates that there are significant parallels between IIL and US constitutional law protections against takings of property. Although this means that investment law tribunals can learn from domestic US experiences, it also means that many of the problems present in US constitutional property law have been replicated in IIL. Again, we suggest that the key to addressing this challenge is a more detailed consideration and application of host state property law principles and concepts.