The major legal traditions of the world have profound
differences in the legal understanding of contractual and property rights and
their assimilation. Misunderstandings are unavoidable, as evidenced by judgments,
awards and bilateral investment treaties, because lawyers coming from different
legal backgrounds shall approach the same terms and factual settings from their
own legal perspective. Very often in investment arbitration the differences
relating to the interplay between contract and property have not been realised
and appreciated. The present legal uncertainty with regard to how and when
contractual rights will be treated as property is unsatisfactory. It
contributes to a certain extent to the current mistrust in the investor – state
dispute settlement system, because respondents from a civil law tradition have
not expected that their bits will be interpreted in accordance with an
expansive definition of property. The export of an alien concept of property
should not be done through the back door of bits, because efforts to do so
could break the investor-state dispute settlement system itself.