What is it about?

International investment tribunals have to address violations of treaty protections provided to foreign investors. Often they need to determine the exact scope of a foreign investment in question before analyzing whether a treaty provision has been breached. This article argues that the delimitation of foreign investment, i.e. the creation and existence of property rights, should be defined according to the domestic law of the host State of the investment in question

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Why is it important?

The article draws attention to the lack of clarity in the area of the legal rules applicable to property in the context of treaty arbitration and points out certain problems that can arise out of a misinterpretation of the dichotomy between international and municipal law with regard to property determinations


This article was my first attempt to understand and conceptualize a confusion that I found to exist between different approaches to the applicable law to property. It is responsible for my interest in this area of law and led me to conduct further research to address this problem

Laura Yvonne Zielinski
Holland & Knight

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This page is a summary of: “You Cannot Lose What You Never Had”: The Law Applicable to Property Determinations in ICSID Arbitration, The Law and Practice of International Courts and Tribunals, June 2018, Brill, DOI: 10.1163/15718034-12341380.
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