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International Investment Law and Comparative Public Law$
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Stephan W. Schill

Print publication date: 2010

Print ISBN-13: 9780199589104

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199589104.001.0001

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Property Protection and Protection of Cultural Heritage

Property Protection and Protection of Cultural Heritage

(p.541) 17 Property Protection and Protection of Cultural Heritage
International Investment Law and Comparative Public Law

Federico Lenzerini

Oxford University Press

In contemporary international law, the tension between the public interest in safeguarding cultural heritage and private property rights — including investors' rights — is often hard to settle, as full realization of one of them may inescapably lead to sacrificing the other. Although this tension is resolved by domestic legislations through solutions that are sometimes quite heterogeneous, a considerable practice has evolved at the level of international investment arbitration, which allows some conclusions to be drawn concerning the existence of certain general principles of law regulating the interaction between the two values in question. In particular, certain restrictions to private property rights are legitimate for safeguarding cultural heritage, provided that they are applied in a proportional and non-discriminatory manner and investors are granted just compensation or financial aid and access to effective judicial remedies.

Keywords:   cultural heritage, property rights, international investment arbitration, World Heritage Convention, indirect expropriation, proportionality, non-discrimination, judicial remedies

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