International Comparative Property Rights: A Cross-Cultural Discipline Comes of Age

Patricia E. Salkin & Daniel Gross 

The decision to hold the annual Brigham-Kanner Property Rights Conference in Beijing, China provided an opportunity for academics and practitioners from the United States to consider our notions of property rights in the context of a global economy. The topic is timely as just last year Professor Rachelle Alterman observed in her book, Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights, “[a] though this topic should be a prime target for cross-national research, very little has been published.” Yet, it is critically important that in this era of globalization, we begin to understand the differences and similarities that exist in property rights regimes across the world as clients have become more “international” in both travel, business dealings, and investments. Opening up international trade has enriched much of the developing world, and helped rapid economic growth in developing countries, further helping the prosperity of these people living in these places. However, as global economy grows and reaches new corners of the world, it brings with it different factors, all of which can influence the property regime in each nation it touches upon. For example, strong protection of private property rights is believed by some to be the backbone of capitalism and explains why capitalism has been successful in developed nations compared to developing nations. This fact remains, despite the estimate that “the total value of the real estate held but not legally owned by the poor of the Third World and former communist nations is at least $9.3 trillion.” This makes it more important today for lawyers in the United States to be able to generally inform clients of potential risks when they desire to make investments in overseas real property. Although the ethical provision of legal advice may require partnering with foreign law firms and local counsel, the reality is that general descriptions of the real property regimes in emerging economic powers and/or in countries offering desirable labor forces and plentiful land require some basic knowledge for U.S. practitioners. However, the concept of “property” can differ so radically when viewed through cross-cultural lenses that it can present a number of difficulties for unfamiliar practitioners.

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