As a legal discipline, property law poses some unique issues for international coordination. Given that property law straddles both public law and private law, property law has long been resistant to private ordering and this resistance is thrown into sharp relief by the ‘growing prevalence’ of legal situations involving some element of ‘cross-border property rights and interests’ (9). These situations range from the bankruptcy of multinationals, the international trade of investment securities, the infringement of international human rights protections for property, and the clashes between the protection of assets offered by bilateral investment treaties and domestic property laws, to say nothing of the issues raised by cross-border transfers of data and digital assets. That property law has a role to play in these scenarios is not always obvious and, yet, because of the way property law operates there can be a gap between domestic laws and the processes of globalisation.
In Property Law in a Globalizing World, Amnon Lehavi argues that property law will require ‘a particularly dramatic move toward interstate ordering’ (4) given the variation between State-level property laws and the difficulty of private ordering where property rights are involved. By examining the current situation and likely future developments, he identifies four strategies—‘soft law, conflict of laws, approximation, and supranationalism’ (5)—which are used to lessen the gaps between domestic property law and the processes of globalisation. After a brief introduction, the book is organised into six substantive chapters. Chapter 1 sets out the structure of property law and seeks to explain what it is about property—even as jurisdictions differ on the details—that renders it more domestic and thus makes any attempts at harmonisation fraught. The second chapter examines various international institutions and how they interact with property law. Lehavi argues that, by their very nature, property rights require ‘legislative lawmaking’ (51) and the international coordination of such rights requires extensive cooperation and collaboration. Yet because international institutions often only deal with one aspect of property there is a risk of ‘normative fragmentation and incomplete institutions’ (53).
The next four chapters all examine a particular type of asset or assets in a cross-border context: land (Chapter 3); moveable assets (Chapter 4); ‘intellectual property, data, and digital assets’ (Chapter 5); and ‘Security Interests and Proprietary Priorities in Insolvency’ (Chapter 6). Each of these four chapters is structured similarly: all begin with a brief overview of the issues concerning the assets under study; then each examines the laws—both domestic and international—covering the assets; and, where relevant, other concerns specific to the asset—for example, human rights issues in the context of land and whether data is or ought to be conceived of as property—are mentioned before concluding with a brief policy analysis of the strategies currently in use and which strategies may come to be used.
The innovative aspect of Lehavi's work is its reliance on how the ‘structure’ of property law matters for cross-border disputes involving property. Yet, even as Lehavi notes broad similarities in structure, he also identifies divergences between what can be property and how different types of property should be regulated. The divergences are just as much about culture as they are about law given the way that property law and culture are intertwined. One example of such divergences occurs when investors in ‘capital-rich’ nations purchase large swathes of agricultural land in developing nations (91). Lehavi notes that such transactions do not necessarily accommodate the rights of Indigenous Peoples nor recognise informal systems of land tenure. The resulting disputes are a complex blend of ‘tribal norms, domestic law, international investment commitments, and human rights provisions’ (118).
However, cultural differences matter beyond land, as Lehavi notes in his discussion of intellectual property rights. He refers to Novartis v Union of India ((2013) 6 SCC 1 (India)) as evidence of different cultural approaches to protecting intellectual property rights. The Indian Supreme Court was concerned that ‘overbroad patent protection’ would value private property rights over making vital medicines affordable (198). Such an example illustrates what is at stake in the different harmonisation strategies Lehavi identifies. Any harmonisation of property rights will necessarily require complex trade-offs between competing human rights, competing conceptions of what property rights protections entail and between an asset's financial value and its social role.
Despite noting property law's resistance to private ordering, Lehavi sees some scope for bottom-up coordination in cross-border insolvency. He uses the example of the Lehman Brothers Protocol which sought to promote cooperation between the ‘bankruptcy administrators and creditors across borders’ (269) in managing the ‘biggest bankruptcy in world history’ (268). The distinguishing feature here, unlike the disputes referenced earlier, is that the Lehman Brothers’ creditors had a common goal: realising the maximum value of the assets.
Given the breadth of Lehavi's study it is perhaps not surprising that the book errs on the side of being descriptive rather than prescriptive. Despite each of the substantive chapters having a short policy analysis at the end, the main success of this book is in setting out what is actually going on. Flowing from the mostly descriptive nature of the book, Lehavi's categorisation of the various globalisation strategies notwithstanding, the various strategies and conflicts are presented neutrally. Lehavi's interest is not so much whether these developments are good or bad but in collating them. That task is in and of itself valuable and lays the groundwork for future work studying the globalisation of property law. What is frustrating, however, is that the book lacks both a bibliography and a citation style which lists the original footnote where the full citation can be found. These are, however, minor quibbles. As an overview of a broad and dynamic field, Property Law in a Globalizing World fills a much-needed gap and will hopefully prompt further critical engagement and study.