Intl-Economic-Law-Lowenfeld-Sp06 - Outline International...

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Outline – International Economic Transactions w/ Andreas Lowenfed– Part I (International Investment) I. Background on International Investment: A. Background on International Investment: 1. Investment is an alternative to international trade – one way to jump trade barriers. 2. Most of international investment is by and between international companies II. Background on International Law on the Expropriation of Foreigners Pre-WWII : A. CONSENSUS: 1. Pre-1917, it appears to have been accepted among the principal nations—without a great deal of discussion—that a state that took an alien’s property was obligated to make prompt and adequate compensation 2. Accorded with a general principle of (international—it’s unclear) law that aliens are entitled to at least national treatment, with respect to property B. Consensus breaks down with Russian and Mexican Revolutions 1. Russia – private ownership abolished in 1917 a. COMMUNIST VIEW of foreign investment denies any international legal rules concerning property owned by aliens AND regards nationalization of property of aliens as part of the right of self-determination of nations 2. Mexico – private property derives from the state, which has and has had the continuing right to transmit ownership a. SOCIAL FUNCTION OF PROPERTY i. Private taking yielded prior and more or less full compensation ii. Nationalization and redistribution did NOT require prior, prompt, or necessarily full compensation b. CALVO DOCTRINE – under international law aliens have NO rights greater than citizens of the host country (IEL p. 393). i. Only obligation to foreigners is NOT to discriminate ii. Some nations took this further and required owners of land/property to incorporate in the host country and renounce all the protections of the home country. c. Mexico’s response to HULL: i. NO universal theory or practice of compensation in international law ii. Mexico’s duty to pay is NOT imposed by international law, BUT by its own laws C. Western view 1. United States Norway Arbitration Award (1918) (IEL 396) – “Whether the action of the United States was lawful or NOT, JUST COMPENSATION is due to the claimants under the municipal law of the United States, as well as under the international law, based on the respect for private property.” 2. DeSabla Claim (United States v. Panama) (1933) (IEL 396) – “It is axiomatic that acts of a government in depriving an alien of his property without compensation impose international responsibility.” 3. Chorzow Factory Case (1926-29) (IEL 396) – PRINCIPAL case in support of the obligation of just compensation. World Court decided seizure of German property by the Polish government at the close of WWI had been unlawful. a.
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This note was uploaded on 04/04/2008 for the course LAW ALL taught by Professor Multiple during the Fall '06 term at NYU.

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Intl-Economic-Law-Lowenfeld-Sp06 - Outline International...

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