Kaj Hobér, Extinctive Prescription and Applicable Law In Interstate Arbitration* – Vol. 12 No. 3-4

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AuthorAndreas F. Lowenfeld

Published: October 2003

Commercial Disputes
Applicable Law

What a strange book this is. The subject of this book is extinctive prescription, although that term is not addressed until page 248. We are told that there is a significant difference between municipal and international law, but that the author is interested only in international law. Further, that there is a significant difference between international commercial arbitration and state-to-state arbitration, but that the author is interested only in the latter. True, there is much less state-to-state arbitration than there was in the era of the Jay Treaty following the American Revolution, of the Alabama Claims Arbitration following the American Civil War, and in the last decades of the nineteenth century and the first decades of the twentieth century, when the industrialized countries regularly espoused claims of their nationals against what we now call developing countries.

The reason, of course, for fewer state-to-state arbitrations than in earlier periods, is that espousal of private claims has been almost completely replaced by arrangements to give private persons, particularly corporate transnational investors, the opportunity to bring claims on their own, through such vehicles as the World Bank Convention on the Settlement of Investment Disputes (the ICSID Convention), more than a thousand Bilateral Investment Treaties (BITs), and the investment chapter of the North American Free Trade Agreement (NAFTA). Still, state-to-state arbitration remains important, the author says, which seems moderately persuasive, though so far as I can tell none of the arbitrations Hobér cites since the end of World War I involved extinctive prescription.

What then is extinctive prescription? Prescription is used not in the sense of legislation or command — jurisdiction to prescribe in the terminology of the Restatement.1 What Hobér is talking about is the extinction of a legal claim through lapse of time. The author further narrows his subject by distinguishing extinctive or negative prescription from acquisitive or positive prescription — what we would call adverse possession, as where open and unchallenged occupation of territory leads to acquisition of title.

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