Globalizing Property Law: An Institutional Analysis
This Article identifies the key role that institutions play in moving toward an effective cross-border regime in property law. Property is based on an in rem principle, which should provide a single system for ranking rights, powers, and priorities in assets that applies to all interested parties. In a global context, this feature of property law requires a cross-border legal ordering by an array of domestic and supranational institutions: legislative, administrative, and adjudicative.
The Article argues that the present fragmentation of property norms across national borders, and the incompleteness of supranational institutions that deal with property law, may place limits on the ability to create and enforce a comprehensive global ordering of property rights. This current deficiency impacts a broad plethora of assets: land, tangible goods, monetary claims, intellectual property and other intangible assets, and resources such as tradable emission rights. Whereas “soft law” instruments do not require binding supranational institutions, the need for such institutions proves critical for more ambitious strategies for globalization, such as increasing attempts to provide supranational constitutional protection of the right to property, or establishing a property law infrastructure for a global market in capital, goods, and services.