Putting to Work the Uncanny: Historical Argument in International Economic Law

Abstract

In response to Anne Orford’s International Law and the Politics of History (Cambridge University Press 2021), this review essay first explores Orford’s account of how history works in two deeply judicialised and politically contested fields of international economic law: the World Trade Organization (WTO) and investment treaty arbitration (also known as investor-State dispute settlement or ISDS). Second, I figure out what was at stake in Orford’s critical treatment of Quinn Slobodian’s Globalists: The End of Empire and the Birth of Neoliberalism (Harvard University Press 2018), namely that intel-lectual historians cannot capture the subtleties of international law as technical argumentation. Third, I unravel the uneven role played by appeals to the past in trade and investment disputes, given the dis-crete sensibilities of the WTO Appellate Body and investment tribunals. Finally, riffing off the postlude to Gerry Simpson’s The Sentimental Life of International Law: Literature, Language, and Longing in World Politics (Oxford University Press 2021), I highlight how three lawyers (Gathii, Bartels, Craw-ford) uncovered the uncanny connections between past and present to strengthen their scholarly inter-ventions in shaping the course of international economic law. This exercise clarifies a possible role for historians in supporting the work of international lawyers.

Keywords: international economic law, WTO, investment treaty arbitration, legal history, legal reasoning, intellectual history