Leading Works on International Law: The International Law on Foreign Investment

Public International Law

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.

Paratexts and Authorship

Intellectual Property

The materiality of literature, and its implications on copyright law’s central categories of author and work, is a recurrent question in the theory and history of intellectual property. In my recent article ‘From Paratexts to Print Machinery’ published in Law and Critique, I attend to some peripheral matters of Immanuel Kant’s 1785 essay, ‘On the Wrongfulness of Reprinting’ (Von der Unrechtmäßigkeit des Büchernachdrucks), as indices of its medial-material conditions of possibility. This medial reading is guided by Gérard Genette’s notion of the paratext, defined as ‘what enables a text to become a book and to be offered as such to its readers and, more generally, to the public.’ Originally appearing in the May 1785 issue of the Berlinische Monatsschrift, Kant’s publication materially encompassed not only the epitextual background of the German Enlightenment, but also the peritextual features of catchwords, signature marks, and various front matter. I argue that the periodical was deeply involved in the operations of a print machinery preceding the authorial figure, the existence of which perturbs copyright law’s attachment to original authorship.

The Nature of Property in Cryptoassets

Law & Technology, Property Law

While cryptoassets have generally been accepted as a form of property in Commonwealth jurisdictions, it remains unclear how specific property rules apply. What is required for title to a cryptoasset to be legally transferred? Is a blockchain transaction necessary or sufficient for that purpose? If a transaction is unauthorised or procured by fraud, when (if ever) do subsequent purchasers take free of the original owner’s title? These questions are relevant, for example, to proprietary disputes in crypto litigation and the structuring of secured crypto-finance arrangements.

Justifying Concurrent Claims in Private International Law

Conflicts of Law

Should claimants be entitled to sue either in contract or tort (or both sans double recovery) on a single set of facts? In domestic law, the answer to this question – the question of concurrent liability – matters because obvious differences exist between contract and tort: different remoteness, remedial, and limitation rules apply, for example. Choosing between these claims allows claimants to maximise the chances and consequences of success. Is this justifiable?

Liability for Environmental Harm to the Global Commons

Environmental Law, International Law

On 10 November 1988, the oil tanker Odyssey broke apart in the North Atlantic 700 miles off the Canadian coast. With 132,000 tons of crude oil released into the marine environment, it was one of the largest oil spills to have ever occurred. However, because it occurred in the high seas and did not reach the shores of any state, no response actions were taken, even though marine environmental harm almost certainly occurred. The pollution did not trigger the same sort of response as an oil spill in maritime areas under sovereignty (such as territorial waters) or under national jurisdiction (such as Exclusive Economic Zones) because the harm itself was to the environment per se as opposed to impacting the economic interests of a particular state or private actor. Even if the consequent environmental harm was quantifiable and compensable, it is not clear what legal entities would have the right to recover for the loss suffered. This is a function of the nature of the high seas as a “global commons” area or an area beyond national jurisdiction (ABNJ), where no state has jurisdiction and where harm is suffered by all states and arguably by all humankind, given the interconnected nature of the oceans and the variety of ecosystem services it provides.

Corporate Governance in Singapore – The Road Thus Far

Corporate Governance

The first Code of Corporate Governance was adopted in Singapore 21 years ago in 2001. Since then, the Code has been re-issued three times, the last being in 2018. There has also been a shift in approach taken by the Singapore regulators with regards to how corporate governance should be enforced among companies, especially those listed on the Singapore Exchange. From a voluntary “comply-or-explain” approach to partially mandatory, instilling the right degree of corporate governance in Singapore companies has been a balancing act for the regulators throughout these years.

Schrödinger’s Lawful Act Duress: Dead or Alive?

Contract Law

Can you set aside a contract if you were induced to enter it by my application of lawful pressure that may threaten your economic interests, reputation, or your concern to protect a loved one? This raises difficult policies since the only viable basis for discriminating between acceptable and unacceptable pressures is not positive law but social morality. On the other hand, if lawful pressures are always exempt, those who devise outrageous but technically lawful means of compulsion must always escape. The courts have accepted that the categories of duress are not closed and that an illegitimate threat can include one which is lawful, although it must ‘at least be immoral or unconscionable’. What then falls within this category of lawful act duress?

Sentencing Offenders for Driving Dangerously or Carelessly While Under Influence: Resolving the Double-counting Quandary

Criminal Law, Sentencing Law and Policy

The Singapore legislature introduced a set of refined and interlinked provisions in the Road Traffic Act 1961 (RTA), which came into force on 1 November 2019. These provisions were intended to deal better with cases in Singapore where motorists drove dangerously or carelessly while under influence of drink or drugs. However, these provisions when applied may give rise to an issue of double-counting in punishment, and the way in which the courts have applied these provisions is such that in some cases this double-counting is fully ameliorated while in other cases it is not.