- Research Handbooks on Globalisation and the Law series
Edited by Ugo Mattei and John D. Haskell
Chapter 23: The empty circularity of regulatory takings: the legacy of a legal realist critique for a 21st-century context
It is common ground among the scholars of international law that many contemporary international standards concerning the treatment of private actors by sovereign states find their historical origin in the US constitutional legal tradition. Whatever may be the reason that might explain how this pattern of cross-pollination has emerged, it seems beyond doubt that both the conceptual architecture and the actual operative language used in fields such as international criminal justice, international human rights, and non-tariff trade barriers borrow quite heavily from the US domestic legal experience. In no other area of international law, however, has this practice of borrowing been more obvious in recent years than in that segment of the global investment regime which deals with the subject of regulatory expropriation, or to use the standard US legal terminology, regulatory takings. The sheer scale of en bloc importation that has been carried out on this front over the last few decades has reached such colossal proportions that it would be simply impossible to try to understand the evolution of this part of international investment law without taking into account its relationship with its US domestic counterpart. And yet, it is equally crucial to note, not everything that could have been imported on this front has in fact been imported.
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