Abstract
Due to its strong connection with sovereignty, territoriality and socio-economic policies, property law is traditionally considered part of the closed citadel of national law. This axiom is reinforced by private international law, where the mandatory principle of lex rei sitae acts as a barrier against the cross-fertilization of national property systems. No international treaty has ever touched the field directly; even in Europe, in spite of the interference of EU acts on national property laws, the Lisbon Treaty leaves property in the exclusive competence of Member States. It is not by accident that the majority of comparative law scholars approach the subject with a state-centric perspective, often emphasising the unbridgeable divide between different property traditions. Today the citadel is under multilateral attack. Bilateral investment treaties (BITs) and other international agreements break long-lasting dogmas and extend the scope of property to cover not only intangible assets, but also contractual rights and expectations. 'Cosmopolitan' human rights courts use a sui generis compara- tive approach to develop a similar autonomous conceptualisation of subject matter, structure, and content of property rights, while the potential horizontal effects of their decisions nullify the traditional constitutional/private law property divide. Internet and private ordering push for the cross-border recognition of virtual or quasi-proprietary entitlements, questioning the fundamental separation between property and contract and the sanctity of the numerus clausus principle. No matter how vigorously legal formants have tried to reinforce the citadel walls, these cos- mopolitan 'irritants' have already engendered several interpretative short-circuits, which a state-centric comparative analysis is unable to deconstruct and explain. To overcome the impasse, this paper advocates for the adoption of the functional method to verify the existence of a new global property model, sketch out its main characteristics, and help national legal systems embedding these new cosmopolitan elements, whether within or outside property law.
Highlights
No other area of private law has been more consistently defended against any historical attempt of supranational standardization or cross-border contamination than the law of property
Due to its strong connection with sovereignty, territoriality and socio-economic policies, property law is traditionally considered part of the closed citadel of national law. This axiom is reinforced by private international law, where the mandatory principle of lex rei sitae acts as a barrier against the cross-fertilization of national property systems
The new functional equivalents of the principle can be found in the criteria created by arbitral tribunals to limit the category of investments, or by scholars and courts to circumscribe the range of virtual property assets
Summary
No other area of private law has been more consistently defended against any historical attempt of supranational standardization or cross-border contamination than the law of property. The great divides among legal traditions, the rigidity of property regimes, the huge diversity in terminology and basic structures, and the resistance against changes and circulation of legal models have made property law a much less fertile soil for comparative exercises than the law of contract and tort.[16] the trend seems to have changed from the beginning of this century, when several interesting contributions started engaging in interdisciplinary comparative studies, or used historical analysis to reveal the common roots of modern property regimes and to explain how their great semantic, conceptual and structural differences have developed and crystallized through the centuries.[17] And yet, notwithstanding their innovation, most of these studies concentrate on the divide between property models and on the impossibility or non-desirability of their convergence This focus has made them of little to no practical use in understanding and tackling the growing movement towards cross-border standardization of property regimes. This assists in verifying the eventual existence of a trend towards the creation of a general global property model, and to propose the use of the functional method to help national legal formants approach and internalize it without extremeirritations'
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