By Muthucumaraswamy Sornarajah
Donna Lyons’s edited book, Leading Works on International Law, published at the end of 2023, has chapters by eleven authors describing works the editor had chosen as the leading works in international law published in recent times. The chapters on the works were written by the authors, making it an unusual collection in that each author was given an opportunity of stating how she or he came to write her or his work and what they considered to be the impact of their works. In a chapter titled ‘Battling Against Power: The International Law on Foreign Investment’, I was asked to describe the circumstances in which I wrote my book, The International Law on Foreign Investment (5th Edition, Cambridge University Press, London, 2021). In oriental traditions of scholarship, self-praise is to be avoided but it was, in this case, what I was required to do.
I wrote the book as a monograph on the protection of foreign investment through international law. At the time, there was no treatment of this subject as a whole though there were aspects of it covered in books. It was well received, though it was written from the point of view of a developing country lawyer, highly critical of the existing views on the subject. The British Year-Book of International Law thought it ‘deserved to be a classic’. Events which transpired converted the subject into a highly litigated area due to arbitrations under investment treaties becoming possible in the very year I wrote the work. A second edition followed and the British Yearbook of International Law took the unusual step of reviewing the second edition. The increasing litigation in the field required subsequent editions though the book was never written as a practitioners guide. Its significance is that the area became a distinct subject of study in law schools as a result of the extent of litigation. The book was regarded as outlining a new subject in law school curricula.
The book became a text for the subject taught in many law schools. Its origins were entirely at the National University of Singapore where I had taught the outlines of the subject for many years before and after writing the book and its successive editions.
From the point of view of international law, its purpose was to show that power was the determinant of many of the principles in the area covered. It showed that the sources of this area of the law, like custom and treaties, were dominated by the large powers and its subsidiary sources like the teachings of highly qualified publicists or decisions of tribunals were guided by the interests of the large powers. I was harsh on international law academics of the West who were passed off as ‘highly qualified publicists’ pointing out that they often had mercenary interests in the opinions they stated in their writings. Its acerbic criticism of mainstream scholarship drew opprobrium but, as time passed, an increasing body of younger international lawyers adopted my view making it common-place.
The division still exists. But, in the changed context of the world order, with Europe and the United States losing their hegemonic positions, the old views are changing. These states themselves are seeking changes to the law because the law they once made is being used against them. The change that awaits will be interesting to study. I hope to write new editions describing and analysing these changes. Writing it also enabled me to formulate a theory of change in international law which will form the basis of my next book.
Keywords: Foreign Investment, Investment Treaties, International Law
AUTHOR INFORMATION
M Sornarajah is Emeritus Professor and former CJ Koh Professor of Law at the National University of Singapore, the Tunku Abdul Rahman Professor of Law at the University of Malaya, and the former head of the school of law at the University of Tasmania.
Email: lawsorna@nus.edu.sg