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In a previous post1 I mentioned how I got started in legal publishing as part of my law career. One of the books I mentioned was International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, co-authored with Noah D. Rubins, an American international arbitration attorney in Paris. This book was published in 2005 by Oceana Publications, which was then acquired by Oxford University Press. The publisher recently granted permission for me to publish the Preface and Introduction and some ancillary material such as the index and table of contents. It may be downloaded here (in PDF form).

Many of my free market and libertarian friends know mainly of my writing and in those areas, but I’ve also published a good deal on the legal and practitioner side—not that there is no overlap between them (for example, I’ve written on IP law, as a lawyer, as well as IP policy, as a libertarian). This book is primarily legal and practitioner related (but also attempts to present the material in a detailed, scholarly way), but one driving goal for this project was to help find practical, legal ways to protect property rights of capitalistic companies and investors from takings by the host state. That is one reason my dedication was to Hans-Hermann Hoppe, the world’s preeminent Austrian economist and libertarian theorist. I explained some of our motivation for writing the book in the Preface:

As globalization continues, foreign direct investment, including investment in developing economies, continues to grow each year as well. Political risk—the risk that a host government will interfere with the property rights of a foreign investor—is therefore a topic increasingly central to strategic discussions within both governments and the international business community. While domestic legal, economic and political considerations are critical to assessing political risk, international law also plays an important role. State responsibility for investor protection, treaties protecting foreign investment, political risk insurance, the immunity of states from suit in national courts, and international arbitration between states and investors are just a few of the matters governed or affected by evolving principles of international law.

There has long been a need for a current reference work integrating these and other issues related to international investment and political risk. Many of the relevant topics have been addressed in law journals or monographs, but never as part of an integrated analysis of political risk. And while there is certainly a wealth of material concerning the international law of investment protection, much of it is written from an academic viewpoint rather than from the perspective of assisting businesses and governments in avoiding or reacting to the conflict between interests private and public, foreign and domestic.

The 1997 Oceana monograph Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk, penned by one of the present volume’s co-authors and his former colleague, Paul Comeaux, was written to address these and other topics. As one reviewer wrote, “The book is very useful for beginners as an introduction and easier to access and use than the much more comprehensive and in-depth studies by Sornarajah and Muchlinski.”2  Another commented:

This book provides an in depth analysis of the political risk associated with foreign investment—that the host government may decide to nationalize, or otherwise interfere with, alien property rights. It succinctly identifies the decisional factors including treaties, political risk insurance, sovereign immunity, and arbitration between States and investors. It serves as a useful primer for investors, corporate counsel, and anyone interested in expropriation litigation disputes.3

Since the previous book was released eight years ago, far more attention has been paid to some of these topics, in particular investor-state arbitration. This is no surprise: the number of cases registered at the International Centre for the Settlement of Investment Disputes between 1997 and 2001 was equal to the number initiated before 1997 since the Centre’s inception in 1965.

The present volume addresses the same issues as did the 1997 work, with updated and expanded coverage. Our goal here is to enable the investor to appreciate the risks associated with government interference in property rights, to minimize those risks and deal effectively with their consequences. But we also hope to promote understanding within host governments about investors’ expectations and concerns, to allow them to avoid conflict and maximize the benefits of foreign direct investment for their countries and constituencies.

This book is addressed to a wide audience, and is written to appeal to lawyers and non-lawyers alike. It is suitable as a primer for attorneys and investors seeking to familiarize themselves with international law pertaining to political risk. It is also addressed to both in-house and outside counsel for corporations who either have made or are contemplating foreign direct investment in developing (or other) countries. Experienced attorneys involved in expropriation-related litigation should also find this book useful as a reference guide to important principles of international law related to political risk. It should also be useful to law students studying international law and academics seeking a reference work pertaining to the legal aspects of international investment and political risk. Last but certainly not least, government officials and attorneys can glean important information about the mindset of foreign investors and their likely course of action should State measures adversely affect their investment. We hope that practitioners will find the sample and source documents in the appendices of use as well, both for comparison purposes and for ease of reference.

We are convinced that the reduction of political risk, through the active participation of both host countries and foreign investors, is a critical factor in the improvement of the human condition worldwide. Entrepreneurship and capital investment are essential to the expansion of prosperity. This conviction, in addition to a more detached enthusiasm for the subject of our practice and research, is one motivation for undertaking this book and, we believe, has spurred us to forcefully explain both how investors can protect themselves, and the ways that host States can make such protection superfluous. It should be noted that, regardless of the authors’ policy preferences, we have attempted to remain strictly objective in evaluating the realities of international law, business, and politics.

… To two individuals we owe special thanks, and it is to these two that we dedicate this book. One of the authors (Kinsella) has been lucky enough to be befriended and informally mentored by Professor Hans-Hermann Hoppe, a leading libertarian theorist and Austrian school economist in the tradition of Ludwig von Mises. Hoppe’s brilliant and tireless advocacy of the principles of individual liberty, sound economics, and international trade, peace and harmony has been an inspiration. …

I am obliged to note here that the material in the file is copyright 2005 Oxford University Press, and is reprinted here by permission of Oxford University Press, USA. The book may be found on Oxford’s website here.

Further information, such as book reviews and online resources and links to various institutions, websites, services, and other resources pertaining to topics discussed throughout the text of the book may be found here.

  1. New Publisher, Co-Editor for my Legal Treatise, and how I got started with legal publishing []
  2.  T. Wälde review, CEPMLP Internet Journal, vol. 3 (1998). See alsoreview by Assad Omer, Transnational Corporations, vol. 10, no. 1 (UNCTAD, April 2001). []
  3. American Society of International Law: Reader’s Corner (Issue #16, June 1998).  []
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Recent Developments in Jurisprudence and Legislation (1994)

One of my earliest published articles (and delivered speeches). From 1994. HTML from Word version below; PDF. When I was a young lawyer at large law firms, I took every chance I could to publish, get my name out there, etc. (see New Publisher, Co-Editor for my Legal Treatise, and how I got started with legal publishing).

 

 

Recent Developments in Jurisprudence and Legislation

by

Robert O. Thomas & N. Stephan Kinsella

Jackson & Walker, L.L.P.

Houston, Texas

41 LSU Mineral Law Institute Ch. 6 (1994) [click to continue…]

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This is an article I published in the Philadelphia Lawyer, p. 20 (Fall 1997) (PDF), about the now-defunct Multilateral Agreement on Investment, or MAI. At the time I was in favor of it and somewhat naively optimistic that a fairly universal pro-private property rights agreement might be adopted. Sigh.

For more background on related matters, see my book International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford University Press, 2005) and my Online Appendix XVII, “Online Resources”.

The Re-emerging International Framework for Protection of Investment

By Stephan Kinsella1

(version submitted to The Philadelphia Lawyer, September 1997 issue)

We’ll take and take until not even the nails in their shoes are left.  We will take American investments penny by penny until nothing is left.

                                                                                                 —Fidel Castro, 19602 

Less than seventy-five years after it officially began, the contest between capitalism and socialism is over: capitalism has won.

                                                                                        —Robert Heilbroner, 19893 

American entrepreneurs are, by and large, used to operating within a relatively fixed and predictable background of overarching state and federal laws.  If something goes wrong with a business transaction—e.g., one party breaches a contract or intentionally defrauds or harms another—the wronged party that he can very likely resolve the matter in some court, according to some applicable law, whether federal or state.

Similarly, if an investor’s property rights are damaged or otherwise taken by the government, the investor can obtain redress, typically in the form of compensation, in court.  In the West, though protection of property rights is far from perfect, it is largely taken for granted that the government is constitutionally prohibited from taking one’s property (including investments) without due process and just compensation.  Thus, trade and investment flourish in western countries, since both contractual and property rights and protected.

International trade, and investment in foreign countries (known as foreign direct investment), require protection as well.  With respect to foreign trade—for example, trade between an American company and a foreign company—the parties cannot simply assume that they are both subject to jurisdiction in the courts of the same nation.  Despite this seeming difficulty, however, foreign trade has been able to thrive since disputes can be settled, and contracts enforced, even between parties of different nations.  This has long been possible with the international Law Merchant, in which disputes between merchants of different countries are settled in neutral, largely private arbitration proceedings.

Today, for example, private arbitration is frequently conducted in accordance with the rules of the International Centre for the Settlement of Investment Disputes (ICSID), the International Chamber of Commerce (ICC), or the American Arbitration Association (AAA).  In addition, dispute resolution and other aspects of foreign trade are buttressed to some extent by the foreign trade framework established by multilateral agreements such as the General Agreement on Tariffs and Trade (GATT), and its successor, the World Trade Organization (WTO).  Thus, private parties have been and continue to be able to rely on and enforce the contracts necessary for foreign trade.

Foreign direct investment is another matter.  Companies investing in other countries are not able to rely on private measures such as arbitration agreements to ensure that the host state (the state hosting foreign investment) does not interfere with investments.  States have sovereignty over property within their territory, and thus foreign investment is always subject to the threat of expropriation by the host state.  Investing in foreign regimes is thus said to be subject to “political risk,” especially in those states with a history of hostility to capitalism and property rights, such as the former communist states and other developing economies. [click to continue…]

  1.  LL.M., University of London; J.D., M.S., B.S., Louisiana State University.  The author is a member of the Intellectual Property Department and International Law Practice Group of Schnader Harrison Segal &amp; Lewis in Philadelphia, and co-author <i>Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk</i> (Dobbs Ferry, New York: Oceana Publications, 1997).  Email: nskinsella@shsl.com; http://www.shsl.com.  The views expressed herein are those of the author alone, and should not be attributed to any other person or entity.   []
  2.  New York Times, 21 August 1960, § 3(F), p. 1, quoted in Eric N. Baklanoff, Expropriation of U.S. Investment in Cuba, Mexico, and Chile 112 (1975). []
  3.  Robert Heilbroner, “The Triumph of Capitalism,” The New Yorker, Jan. 23, 1989, p. 98.  The superiority of capitalism over socialism had been rigorously proved back in 1920 by the great Austrian economist Ludwig von Mises.  See Ludwig von Mises, Economic Calculation in the Socialist Commonwealth (1990) (1920); see also Ludwig von Mises, Socialism: An Economic and Sociological Analysis (J. Kahane trans., 3d rev’d ed. 1981) (1922).  Mises’s ideas were initially thought to have been refuted by socialist economists, in what is known as the “socialist calculation debate.”  The false conclusion that the socialists won the debate by disproving Mises’s claims was perpetuated in the following decades by economists such as Heilbroner.  See, e.g., Robert Heilbroner, Between Capitalism and Socialism (1970), pp. 88-93, in which Heilbroner claimed that Mises was wrong, that socialist economic calculation was possible, and that the “superior performance” of socialism would “soon reveal the outmoded inadequacy of a free enterprise economy.”  Despite decades of unjust and unfortunate neglect, Mises has finally been vindicated by the universally acknowledged failure of socialism as a viable economic system.  See Gertrude E. Schroeder, “The Dismal Fate of Soviet-Type Economies: Mises Was Right,” Cato J., v. 11, no. 1 (Spring/Summer 1991), p. 13; “Labor Party leader flips on policy,” Philadelphia Inquirer, Apr. 8, 1997, p. A2 (describing the British Labor Party’s endorsement of privatization of state-owned enterprises and recent elimination of a Marxist clause in its constitution advocating common ownership of the means of production).  Even Heilbroner now admits: “It turns out, of course, that Mises was right.”  Robert Heilbroner, “After Communism,” The New Yorker, Sept. 10, 1990, p. 91, 92.  See also Mark Skousen, “‘Just because socialism has lost does not meant that capitalism has won’: Interview with Robert L. Heilbroner,” Forbes, May 27, 1991, p. 130.  For further discussion of the socialist calculation debate, see Murray N. Rothbard, “The End of Socialism and the Calculation Debate Revisited,” 5 Rev. Austrian Econ. 51 (1991); Don Lavoie, Rivalry and Central Planning: The Socialist Calculation Debate Reconsidered (1985); David Ramsay Steele, From Marx to Mises: Post-Capitalist Society and the Challenge of Economic Calculation (1992). []
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This a text version of my Comments on Draft Law on Stimulation of Foreign Investments in Romania, prepared for ABA/CEELI (Spring 1997)

***

M E M O R A N D U M

 

March 25, 1997

 

 

TO:                 Mr. John C. Knechtle

Director, Legal Assessments, ABA/CEELI

 

FROM:           N. Stephan Kinsella [current contact info as of 04/2002: www.KinsellaLaw.com]

 

RE:                 Draft Law on Stimulation of Foreign Investment for the Republic of Romania

 


The following are my comments on the referenced Draft Law. Please note that these comments are my personal opinion and do not represent the opinion of my firm, Schnader Harrison Segal & Lewis, or any of its clients. In the following, my focus, in general, is on the issue of whether and to what extent the Draft Law serves to protect private property, in particular private property related to foreign direct investment in Romania.

 

General Reaction

 

The Draft Law is commendable in that it is an attempt by Romania to add further protections to the private property of foreign investors. However, the Draft Law is problematic in that it is somewhat vague, it does not go far enough in protecting the private property of investors, and it leaves too much discretion in the hands of government in deciding whether to accord “special” treatment to investment. The Draft Law also rests on the assumption that some investments ought to be given favorable treatment, which rests on the false assumption that some investments are objectively “worse” than others, and that the government can accurately assess which investments are relatively more desirable than others. The Draft Law will result in some investors being given favorable treatment with respect to other investors, which is problematic and undesirable. To the extent possible, the Draft Law should be revised to clarify and strengthen the security of a foreign investor’s property rights, as explained in more detail below. The protections provided by the law should be broadened and extended to as many investors and types of investment as possible to reduce the discriminatory treatment that the Draft Law would otherwise provide.

 

Preliminary Considerations [click to continue…]

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Louisiana Civil Law Dictionary Review

My recent book, Louisiana Civil Law Dictionary(Quid Pro Books, 2011), co-authored with an  Austro-libertarian legal scholar friend, Gregory Rome, was recently reviewed at the iPhoneJD blog:

November 13, 2012

Review: Louisiana Civil Law Dictionary — ebook of civil law words and phrases

I’ve reviewed several legal dictionary apps for the iPhone and iPad — Black’s Law DictionaryBarron’s Law Dictionary,Nolo’s Plain English Law Dictionary, the Book of Jargon series by Latham & Watkins — but considering that dictionaries were traditionally books, it makes sense that an ebook dictionary could be just as useful on the iPhone and iPad as an app.  Proof of this is found in the Louisiana Civil Law Dictionary, an ebook by Chalmette, Louisiana attorney Gregory Rome and Houston, Texas attorney Stephan Kinsella.  You can purchase this ebook in several formats including Kindle and Nook, and this review is based on the iBooks version of the ebook.  The book is published by ebook publisher Quid Pro Books, the brainchild of Tulane Law Professor Alan Childress.  Prof. Childress sent me a free review copy a few weeks ago.

As you may know, unlike the other 49 states where the law is based on English common law, the law here in Louisiana is based on civil law from jurisdictions such as France.  That means that we have concepts in Louisiana that are very similar to common law concepts but have different names (e.g. “liberative prescription” instead of “statute of limitation”), plus we have many civil law concepts that are unique to Louisiana.  Black’s Law Dictionary does a decent job with some civil law terms, but a dedicated source like the one has the ability to offer more … and I was impressed by this book.

The Louisiana Civil Law Dictionary includes all of the civil law terms that I use in my practice and a bunch more that were new to me.  (I may have learned some of them when I took the bar exam back in 1994, but that space in my brain has long since been replaced by other knowledge.)  The definitions are clear and complete, and the book includes lots of hyperlinks that make it easy to jump around in the book.  Plus it is easy to slide the marker at the bottom of this ebook to jump to different sections.

IMG_1743 [click to continue…]

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As most of my libertarian friends and readers know, I’ve published for a number of years books and articles in the area of political and legal theory. I’ve also engaged over the years in more practical legal writing, from law review articles to authored and edited books (I maintain a separate website, KinsellaLaw.com, for my legal practice). My legal writing has primarily covered intellectual property and patent law, and international law topics. I started writing in both areas–libertarianism and law–at the beginning of my legal career, in the early 1990s.

The way I got into legal publishing may be of some interest to aspiring legal scholars and law students. Some of my early legal writing was based in part on some of the international business law I learned during my LL.M. at University of London–many of these were published in the Russian Oil & Gas Guide and other fora, while I was an associate practicing oil & gas law at Jackson Walker in Houston, at the encouragement of my boss and mentor, Lanier Yeates.

These were all co-authored with my friend and colleague Paul E. Comeaux. We put a lot of this together into a more comprehensive law review article, “Reducing Political Risk in Developing Countries: Bilateral Investment Treaties, Stabilization Clauses, and MIGA & OPIC Investment Insurance (original version), 15 New York Law School Journal of International and Comparative Law 1 (1994). This piece was scholarly yet practical. Shortly after the piece came out, we were approached by Susan DeMaio, a project editor at Oceana Publications, an international law publisher. Susan suggested we turn the article into a book. Paul and I did this, resulting in Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (Oceana Publications, 1997). Years later, I co-authored International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford University Press, 2005), a successor volume to the 1997 book. This was published with Oxford which had by then acquired Oceana; my co-author was Noah D. Rubins, an American international arbitration attorney in Paris. [click to continue…]

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My new book: Louisiana Civil Law Dictionary

From the site of my publisher, Quid Pro Books, information about the release this month of my new book, Louisiana Civil Law Dictionary (with Gregory Rome; Quid Pro Books 2011). It’s available now at Amazon in paper and kindle formats, and in hardback later this month. Also available in other ebook formats. (Additional information at the dictionary’s website, Civil-Law-Dictionary.com.)

 

A Dictionary of Civil Law Terminology in Louisiana: Usufruct and Naked Owners Are Explained to Common Lawyers and Civilians

With obscure terms like emphyteusis and jactitation, the language of Louisiana’s civil law can sometimes be confusing for students and even for seasoned practitioners. But the Louisiana Civil Law Dictionary can help. It defines every word and phrase contained in the index to the Louisiana Civil Code, plus many more–in clear and concise language–and provides current citations to the relevant statutes, code articles, and cases.  Soon available in paperback, hardback and ebook formats linked below. The dictionary’s dedicated website is here.

Whether you are a student, researcher, lawyer, or judge, if you deal with Louisiana and its laws, this volume will proveindispensable. It is also a valuable resource for notaries and paralegal assistants. No doubt common law practitioners in other states, too, will find ready uses for a dictionary that translates civil law terminology into familiar concepts; they will know how ‘naked ownership’ is different from ‘usufruct.’ And since the civil law dominates the world’s legal systems, this book will find a home with libraries and scholars anywhere there is a need to compare civil law terms with those of the common law.

Quality ebook formatting from Quid Pro Books features active contents, linked notes and URLs, and hundreds of linked cross-references for ready association of related topics. Print editions are available of this valuable resource, yet the ebook format is not just a textual replication of the print book or a PDF; instead, the ebook is carefully designed to take full advantage of the digital ereader’s optimal arrangements and hyperlinks.

“Rome and Kinsella have done a huge service to legal scholarship by assembling the Louisiana Civil Law Dictionary — a splendid resource for those seeking to understand the rich vocabulary of Louisiana law.”
— Bryan A. Garner, President, LawProse, Inc.; and Editor in Chief, Black’s Law Dictionary

“For ready reference on the desk or in a personal or law firm library, in the office of a civilian of any walk of practice or intellectual endeavor, this enormously helpful dictionary is a must. This scholarly reference is essential to the study of the civil law tradition; the Louisiana Civil Law Dictionary serves as a gateway to understanding the civil law system embraced by the majority of legal systems in the world.”
— J. Lanier Yeates, Member, Gordon Arata McCollam Duplantis & Eagan, LLC

AVAILABLE NOW in ebook and print formats:

Amazon for Kindle.

B&N for Nook.

Also available directly on Apple iBooks and iTunes for iPad and iPhone, as well as Kindle and Nook apps.

Available in paperback edition, including from our eStore page with fulfillment by Amazon; at the general Amazon site; and at other booksellers. Library-quality hardcover edition also available from Amazon, B&N, Dawson Books, Ingram catalog and Baker & Taylor (listed in the library catalogs as of Aug. 15). Please contact us for discounts on bulk adoptions.

ISBNs include: 9781610270830 (ePub) and 9781610270878 (hardcover)

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I have for years edited or co-edited three legal treatises, first for Oceana Publications, then for Oxford University Press, and now, for West/Thomson Reuters. These are:

I look forward to working with the new publisher.

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Past, Present and Future: Survival Stories of Lawyers

This was a Texas Lawyer piece from early 2009 concerning an interesting development at the beginning of my legal career in 1991-92, as a result of the last recession. Wait, make that three recessions ago. This explains how I ended up getting an LL.M. in London.

Past, Present and Future: Survival Stories of Lawyers

By Brenda Sapino Jeffreys and Miriam Rozen

Texas Lawyer

April 27, 2009

Thompson & Knight partner Paul Comeaux Image: Mark Graham

Editor’s note: These are grim times for law students and associates, with Texas firms laying off lawyers, cutting summer associate programs and deferring start dates for incoming first-year associates due to a troubled economy. So Texas Lawyer decided to talk with attorneys who have experienced tough economic times in the past and those dealing with the current fallout to put a face to what’s happening in the legal employment market.

BigTex firms have scaled back before because of economic conditions. In 1991, for instance, Dallas firm Jackson Walker asked a number of its incoming first-year associates to consider a one-year deferment in

Stephan Kinsella, general counsel at Applied Optoelectronics Inc. in Sugar Land Image: Courtesy Stephan Kinsella

exchange for a stipend. Two lawyers who took the firm up on that offer say it turned out to be a positive experience and helped boost their careers. But does the past offer lessons for today’s associates? We talked to a lawyer laid off from a BigTex firm

who’s hunting for a new job, as well as to a Bracewell & Giuliani associate who transferred to the New York City office when she noticed her Houston corporate practice was slowing down. Here are their stories.

Europe or Bust

Friends Paul Comeaux and Stephan Kinsella were preparing to graduate from Paul M. Hebert Law Center at Louisiana State University in 1991 and start work as first-year associates at Jackson Walker in Houston when they received a tempting offer from the firm: If they deferred their start date for a year, the firm would pay them $21,000.

While $21,000 doesn’t sound like much today — and it was only a net of $14,000 because it included a $7,000 acceptance bonus — Comeaux notes that his first-year starting salary was $55,000. That’s about a third of the current starting salaries for first-year lawyers at BigTex firms.

“They had too many lawyers coming in,” Kinsella says, noting that Jackson Walker wanted up to 15 of the incoming associates to take the deferment, and he recalls that about a dozen did.

Kinsella says he and Comeaux discussed their options, and both decided to take the deferment and use the time to get an LL.M. degree in international law from King’s College at the University of London. [click to continue…]

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Saúl Litvinoff, R.I.P.

LSU Law Professor Saúl Litvinoff passed away yesterday. As noted in the LSU Law Center press release about this, Litvinoff was a true giant in the field of civil law scholarship.

Professor Emeritus and Boyd Professor of Law Saúl Litvinoff, whose impact on the legal traditions of Louisiana spanned more than 43 years, died earlier today. [click to continue…]

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