Conjuring markets: valuation in comparative international economic law

Abstract

This article focuses on the neglected relationship between market valuation and international economic law by comparing valuation practices in four subfields: international investment law, the law of the European Convention of Human Rights, international tax law, and World Trade Organization law. The operation of each of these hinges, in some crucial respect, on how the worth of a certain thing is determined by the market (calculating damages awarded to investors, identifying a breach of the right to property due to insufficient compensation, allocating taxable income among sovereigns under transfer pricing rules, and identifying the existence and extent of an actionable subsidy). Because the market is often either nonexistent or unreliable, the law must imagine how the market would have valued it. This operation is not mere fact-finding or a technical appendix but rather deeply entangled in the construction and operation of the legal regime. The article ultimately shows that the relationship between valuation and international economic law is highly complex, mutually transformative, and productive of multiple possible arrangements.