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i
D O M E S T I C L AW I N I N T E R N AT I O N A L
I N V E S T M E N T A R B I T R AT I O N
ii
INTERNATIONAL ECONOMIC LAW SERIES

International Economic Law series, established by the late Professor John
H. Jackson, addresses a range of issues in international economic law, which
includes international trade law, international investment law, and the global
financial order. The series aims to encourage interest in the broad contours of
international economic law, heightening awareness of its significance across
the globe as well as its continuous interactions with other areas. The series edi-
tors encourage quality submissions from a wide range of perspectives, includ-
ing doctrinal, theoretical, empirical, and interdisciplinary viewpoints. Novel
and cutting edge research is particularly welcome, as are contributions from
both emerging and established scholars from around the world.
Series Editors
Andrew D. Mitchell
Professor at Melbourne Law School, The University of Melbourne
Tania Voon
Professor at Melbourne Law School,
The University of Melbourne
recent titles in the series

Treaty Shopping in International Law
Jorun Baumgartner
Good Faith and International Economic Law
Edited by Andrew D. Mitchell, M Sornarajah, and Tania Voon
Development at the WTO
Sonia E. Rolland
iii
Domestic Law
in International
Investment Arbitration
by
J A R RO D H E P B U R N
1
iv
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Jarrod Hepburn 2017
The moral rights of the author‌have been asserted
First Edition published in 2017
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
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Data available
Library of Congress Control Number: 2017931026
ISBN 978–0–19–878573–6
Printed and bound by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
v
For Dad
vi
vii
Series Editor’s Preface
The question of domestic law in international investment arbitration as addressed

in this volume by Jarrod Hepburn is of growing importance in both theoretical
and practical terms, as reflected in both investment treaty awards and, increasingly,
international investment agreements (‘IIAs’). The 2015 decision of the majority in
Clayton/Bilcon v Canada, according to the dissenting arbitrator Professor Donald
McRae, controversially equated a breach of Canadian law with a breach of the fair
and equitable treatment standard under c hapter 11 of the North American Free
Trade Agreement. In late 2016, the tribunal in the long-running dispute of Pac Rim
Cayman v El Salvador, constituted under the ICSID Convention on the Settlement
of Investment Disputes, confirmed its jurisdiction to rule on a matter arising under
Salvadoran investment law. After hearing considerable expert evidence on the cen-
tral issue of the correct interpretation of Salvadoran law, the tribunal found no
breach of either Salvadoran or international law. Perhaps partly in response to these
kinds of disputes, countries such as Colombia, Canada and the European Union
have attempted in some of their IIAs to limit the jurisdiction of investment tribu-
nals in determining the legality of a measure under the domestic law of the host
State, including in the now signed Comprehensive Economic and Trade Agreement
between Canada and the European Union.
These kinds of attempts by States to curtail the jurisdiction and power of invest-
ment tribunals with respect to domestic law appear consistent with the traditional
view of domestic law as a question of mere ‘fact’ rather than ‘law’ for the purposes
of public international law. However, as Hepburn explains, that traditional ‘rule’
is subject to uncertainty, exceptions and blurred edges, both in international law
in general and in international investment law in particular. Some IIAs specifically
identify domestic law as part of the applicable law for an investment treaty tribunal,
while in other circumstances tribunals must in any event turn to domestic law to
delineate contractual or property rights, in the absence of relevant international law
rules. In the World Trade Organization (WTO), a parallel realm of international
economic law, the Appellate Body has also refused to treat domestic law purely as
fact, by insisting on its capacity to review WTO panels’ examination of such law.
In his conclusion, Hepburn cites Calvo in recalling the disconnect between
domestic law and international investment law, and in particular the debate over
whether foreign investors can properly demand greater protections under inter-
national law than local investors receive under domestic law. This debate becomes
more complicated in the context of well-established domestic judicial systems that
would ordinarily not be expected to discriminate against foreign investors. This vol-
ume makes an important contribution to the debate in revealing the myriad ways in
which domestic law infiltrates international investment arbitration, with the poten-
tial to (as he puts it) ‘shorte[n]‌the distance’ between domestic and international
viii
viii Series Editor’s Preface
protections for investors. Such interactions are only likely to increase, if moves con-
tinue towards imposing obligations on investors in IIAs (as seen, for example, in the
2015 Indian Model Bilateral Investment Treaty), particularly where accompanied
by the possibility of host States bringing counterclaims or even direct claims against
investors for, say, failing to comply with host State law.
Unfortunately, as this volume demonstrates, many tribunals have not grappled
well with questions of domestic law in international investment arbitration. Soft
law instruments have developed in other areas of international arbitration, such as
the 2008 report of the International Law Association on ascertaining the contents
of the applicable law in international commercial arbitration, and the guidelines
of the International Bar Association on conflicts of interest in international arbi-
tration (revised in 2014). However, similar guidance does not yet exist to assist
tribunals in determining issues of domestic law in international investment arbitra-
tion. In that context, Hepburn’s recommendations have the potential to form the
basis for enhanced soft law on the determination of the content of domestic law in
international investment arbitration. Those recommendations include interpreting
and applying domestic law as it exists in its own jurisdiction, that is, with reference
to relevant domestic interpretations, principles, statutes and caselaw, as well as to
experts called by the parties or the tribunal itself. The detailed analysis and justifica-
tions underlying these recommendations as set out in this volume provide a crucial
reference for future discussions and disputes.
Andrew D. Mitchell and Tania Voon
November 2016
ix
Acknowledgements
This book is a revised version of my DPhil thesis defended at the University of

Oxford in 2014. I was fortunate to have Paul Craig as my supervisor at Oxford; his
knowledge of an immensely wide range of areas of law was invaluable in shaping
the original thesis. I am also grateful to Vaughan Lowe and Nancy Eisenhauer for
their assistance with my DPhil confirmation process, to Dan Sarooshi and Federico
Ortino for their incisive comments as my DPhil examiners, and to the anonymous
reviewers at Oxford University Press for their very helpful feedback and suggestions
in revising the work for publication.
I am indebted to the McKenzie Postdoctoral Fellowship at Melbourne Law
School for giving me the time needed to finalize the book. At Melbourne I owe
much to Jürgen Kurtz, who generously agreed to grant me his expert attention on
elements of the book and his mentorship on the McKenzie Fellowship.
I thank participants in various seminars at which parts of this work were pre-
sented, including at the University of Luxembourg, Singapore Management
University, Melbourne Law School, and All Souls’ College, Oxford.
I have also benefited from conversations with many other people on the fas-
cinating landscape of investment law over several years. In particular, I thank
Farrah Ahmed, Eirik Bjorge, Jonathan Bonnitcha, Govert Coppens, Rishab Gupta,
Jonathan Ketcheson, Gashahun Lemessa, Kubo Macak, Campbell McLachlan,
Martins Paparinskis, Luke Peterson, Sergey Ripinsky, and Matteo Vaccaro Incisa.
Parts of the book were written while I was a visiting researcher at the Max Planck
Institute for Comparative and International Private Law in Hamburg, and I thank
Stefan Vogenauer (formerly) at Oxford and the Max Planck staff for enabling this
visit. Geraldine Malloy at the Oxford Law Faculty, and Glynis Price and Nicola
Trott at Balliol College, also provided support at key administrative moments dur-
ing the DPhil process.
My studies at Oxford were funded by the Chevening Scholarship, the Rae and
Edith Bennett Travelling Scholarship, Allan Myers QC, and the UK Foundation
for International Uniform Law. Their faith in my abilities was essential to the com-
pletion of the project’s foundations.
Lastly, I am eternally thankful to my family for supporting my work in many
ways. I hope that this book offers at least something in return.
x
xi
Table of Contents
Table of Cases xv
1 Introduction 1
1.1 Legitimacy and the ‘Backlash’ against Investment Arbitration 4
1.2 Overview of the Book 8
PA RT I I D E N T I F Y I N G D O M E S T I C L AW I S S U E S
I N I N V E S T M E N T A R B I T R AT I O N
2 Domestic Law and Fair and Equitable Treatment 13
2.1 Introduction 13
2.2 Domestic Law and Direct FET Breaches 17
2.2.1 Domestic legality contributing to FET compliance 17
2.2.2 Domestic illegality contributing to FET breach 20
2.2.3 Domestic legality as a determinative factor? 21
2.3 Domestic Law and Legitimate Expectations under
the FET Standard 26
2.4 Domestic Law and Arbitrariness under the FET Standard 31
2.4.1 Domestic legality as irrelevant 33
2.4.2 Domestic legality as contributory factor 34
2.4.3 Domestic legality as a proxy for (non-)arbitrary measures 36
2.5 Conclusion 39
3 Domestic Law and Expropriation 41

3.1 Introduction 41
3.2 Domestic Law and the ‘Police Powers’ Doctrine 42
3.3 Domestic Law and the International Lawfulness of Expropriation 46
3.3.1 Formulations of the ‘due process’ requirement in IIAs 47
3.3.2 First set—a textual link to domestic law 48
3.3.3 Second set—‘due process of law’ 51
3.3.4 Third set—due process as domestic judicial review 57
3.3.5 Conclusion 58
3.4 Limitations on Lawfulness: The Effect of the Compensation
Requirement 58
3.5 Legality and the Public Nature of Investment Law 62
3.6 Conclusion 67
4 Domestic Law and Remedies 69

4.1 Uncertainty in International Law on Remedies 70
xii
xii Table of Contents

4.2 Application of Domestic Law when Determining Remedies 73
4.2.1 Local failure to act 74
4.2.2 Validity of the investment affecting compensation 78
4.2.3 Temporal extent of claimant’s rights 81
4.2.4 Conclusion 82
4.3 Relevance of Domestic Law Rules on Interest Payments 82
4.3.1 Reference to municipal legal systems generally 83
4.3.2 Reference to host state law specifically 84
4.3.3 Reference to host state law on interest determinations 85
4.3.4 Conclusion 90
4.4 Compliance with Domestic Law as a Factor in Remedies
Determinations 91
4.4.1 Factors allowing consideration of compliance with domestic law
in remedies determinations 94
4.4.2 Domestic legality and non-monetary remedies 96
4.4.3 Conclusion 98
4.5 Conclusion 99
PA RT I I R E S O LV I N G D O M E S T I C L AW I S S U E S
I N I N V E S T M E N T A R B I T R AT I O N
5 Ascertaining the Contents of Domestic Law in Investment Arbitration 103
5.1 Introduction 103
5.2 Domestic Law as Fact in International Investment Arbitration 104
5.3 Tribunals’ Attitude towards Domestic Law 108
5.4 The Practicalities of Ascertaining the Contents of Domestic Law 112
5.4.1 Guidance in arbitral rules 112
5.4.2 Arbitrators’ knowledge of domestic law 113
5.4.3 Guidance from international courts 114
5.4.4 Guidance from national courts 116
5.4.5 Guidance from international commercial arbitration 117
5.5 The Principle of Iura Novit Curia in Investment Arbitration 120
5.6 Weighting Domestic Case-law and Other Domestic
Law Materials 125
5.6.1 Fear of host state manipulation of local case-law 126
5.6.2 No binding res judicata for local case-law 129
5.6.3 Resolving conflicts or uncertainties in domestic case-law 133
5.7 Expert Evidence on Domestic Law 134
5.8 Conclusion 137
6 Applying the Framework—Preliminaries 139

6.1 Introduction 139
6.2 What Counts as Domestic Law? 139
6.2.1 All host state law, or only fundamental laws? 140
6.2.2 Any laws, or only laws related to investment? 147
6.2.3 Only laws that are rule-of-law compliant? 151
xiii
Table of Contents xiii
6.3 Estoppel as a Means to Avoid Consideration of Domestic Law 155

6.3.1 An alternative view: the rule of law and investment law 157
6.3.2 Limits on estoppel 160
6.4 Conclusion 161
7 Applying the Framework—In Practice 163

7.1 A Taxonomy of Errors 163
7.1.1 Failure to appreciate role of domestic law 163
7.1.2 Failure to investigate domestic law sources 166
7.1.3 Failure to engage with available domestic law sources 169
7.1.4 Unreasoned assertions of legality 177
7.1.5 Reliance on improper sources 181
7.2 Positive Models of Domestic Law Reasoning 182
7.2.1 Emulating domestic judges 182
7.2.2 Reliance on domestic materials 183
7.2.3 Reliance on expert witnesses 186
7.3 Conclusion 192
8 Conclusion 193
Bibliography 199
Index 209
xiv
xv
Table of Cases
Accession Mezzanine Capital LP v Hungary (ICSID Case No ARB/12/3), Award,
17 April 2015�� 1, 184
ADC Affiliate Ltd v Hungary (ICSID Case No ARB/03/16), Award of the Tribunal,
2 October 2006�� 53, 57, 85, 155
Adel al Tamimi v Oman (ICSID Case No ARB/11/33), Award, 3 November 2015��15, 133
Adem Dogan v Turkmenistan (ICSID Case No ARB/09/9), Award, 12 August 2014 ��82
Adem Dogan v Turkmenistan (ICSID Case No ARB/09/9), Decision on Annulment,
15 January 2016��108
ADF Group Inc v USA (ICSID Case No ARB(AF)/00/1), Award, 9 January 2003�� 21, 28
AES Summit Generation Ltd v Hungary (ICSID Case No ARB/07/22), Award,
23 September 2010 ��34, 104
Ahmadou Sadio Diallo (Guinea v DRC) (Compensation) [2012] ICJ Rep 324��95
Ahmadou Sadio Diallo (Guinea v DRC) (Judgment) [2010] ICJ Rep 639 ��32, 114
Alasdair Anderson v Costa Rica (ICSID Case No ARB(AF)/07/3), Award, 19 May 2010�� 157, 184
Al-Bahloul v Tajikistan (SCC Case No V 064/2008), Partial Award on Jurisdiction and
Liability, 2 September 2009�� 15, 22, 26, 128, 171
Albert Jan Oostergetel v Slovakia (UNCITRAL), Decision on Jurisdiction, 30 April 2010 ��195
Albert Jan Oostergetel v Slovakia (UNCITRAL), Final Award, 23 April 2012��122
Alex Genin v Estonia (ICSID Case No ARB/99/2), Award, 25 June 2001 ��31, 34, 35, 178-9
Alpha Projektholding GmbH v Ukraine (ICSID Case No ARB/07/16), Award,
8 November 2010�� 29, 61, 78, 146, 156
Amco Asia Corporation v Indonesia (1993) 1 ICSID Rep 413��87, 132
Anaconda-Iran Inc v Iran (Case No 167, Award No ITL 65-167-3), Interlocutory
Award, 10 December 1986��89
Antoine Goetz v Burundi (ICSID Case No ARB/95/3), Award, 10 February 1999�� 47, 49–51,
97, 98, 124, 152, 167, 169,183
Ares International srl v Georgia (ICSID Case No ARB/05/23), Award, 28 February 2008 ��132
ATA Construction, Industrial and Trading Company v Jordan (ICSID Case No ARB/08/2),
Award, 18 May 2010 ��97
Azurix Corp v Argentina (ICSID Case No ARB/01/12), Award, 14 July 2006��38–9, 45
Azurix Corp v Argentina (ICSID Case No ARB/01/12), Decision on the Application for
Annulment of the Argentine Republic, 1 September 2009 ��108
Bayindir Insaat Turizm Ticaret ve Sanayi AŞ v Pakistan (ICSID Case No ARB/03/29), Award,
27 August 2009��104
Bayview Irrigation District v Mexico (ICSID Case No ARB(AF)/05/1), Award,
19 June 2007�� 107, 185–6
Bernardus Funnekotter v Zimbabwe (ICSID Case No ARB/05/6), Award, 22 April 2009��60
Bernhard von Pezold v Zimbabwe (ICSID Case No ARB/10/15), Award, 28 July 2015 ��57, 67,
72, 95, 97, 98, 105
Beyeler v Italy App No 33202/96 (ECHR, 5 January 2000)��153
Binder v Czech Republic (UNCITRAL), Award on Jurisdiction, 6 June 2007��195
Biwater Gauff (Tanzania) Ltd v Tanzania (ICSID Case No ARB/05/22), Award,
24 July 2008�� 19, 61
Bosh International Inc v Ukraine (ICSID Case No ARB/08/11), Award, 25 October 2012��186
BP Exploration Co (Libya) Ltd v Libya (1979) 53 ILR 297��123
British Caribbean Bank Ltd v Belize (PCA Case No 2010-18), Award, 19 December 2014 ��183
xvi
xvi Table of Cases

Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC BV v Paraguay (ICSID
Case No ARB/07/9), Further Decision on Objections to Jurisdiction, 9 October 2012��87
Buyan v Greece App No 28644/08 (ECHR, 3 July 2012) ��153
Carbonara and Ventura v Italy App No 24638/94 (ECHR, 30 May 2000)��153

Cargill Inc v Mexico (ICSID Case No ARB(AF)/05/2), Award, 18 September 2009 �� 16, 34, 39
Centro Europa srl v Italy App No 38433/09 (ECHR, 7 June 2012) ��59
Certain German Interests in Polish Upper Silesia (Germany v Poland) Series A No 7 (1926)��104
Chemtura Corporation v Canada (UNCITRAL), Award, 2 August 2010��43, 177
Chevron Corporation v Ecuador (PCA Case No 2009-23), Decision on Track 1B,
12 March 2015��128
Chevron Corporation v Ecuador (PCA Case No 2009-23), First Partial Award on Track I,
17 September 2013 ��190
Chevron Corporation v Ecuador (PCA Case No 2009-23), Opinion of Jan Paulsson,
12 March 2012��105
Chevron Corporation v Ecuador (PCA Case No 2009-23), Third Interim Award on Jurisdiction
and Admissibility, 27 February 2012 ��190
Chevron Corporation v Ecuador (PCA Case No 2009-23), Track 2 Supplemental Rejoinder on
the Merits of the Republic of Ecuador, 17 March 2015��97
Chevron Corporation v Ecuador (UNCITRAL), Final Award, 31 August 2011��75
Chevron Corporation v Ecuador (UNCITRAL), Partial Award on the Merits,
30 March 2010�� 74, 76, 175
Citibank v Ceylon Petroleum Corporation (LCIA), First Partial Award, 1 August 2011 ��159
CME Czech Republic BV v Czech Republic (UNCITRAL), Comments Relating to Applicable
Law on the Stockholm Tribunal’s Final Award of 14 March 2003, 30 March 2003��120
CME Czech Republic BV v Czech Republic (UNCITRAL), Final Award, 14 March 2003��87, 121
CME Czech Republic BV v Czech Republic (UNCITRAL), Legal Opinion of Christoph
Schreuer and August Reinisch, 20 June 2002��106
CME Czech Republic BV v Czech Republic (UNCITRAL), Partial Award, 13 September 2001��43
CMS Gas Transmission Company v Argentina (ICSID Case No ARB/01/8), Award,
12 May 2005��82
Comingersoll SA v Portugal App No 35382/97 (ECHR, 6 April 2000)��76
Compania de Aguas del Aconquija SA v Argentina (ICSID Case No ARB/97/3),
Award, 20 August 2007 ��60
Copper Mesa Mining Corporation v Ecuador (PCA Case No 2012-2), Award, 15 March 2016 ��92
Cyprus v Turkey App No 25781/94 (ECHR, Judgment of 12 May 2014, Concurring Opinion
of Judge Pinto de Albuquerque)��93
Dan Cake (Portugal) SA v Hungary (ICSID Case No ARB/12/9), Decision on Jurisdiction and
Liability, 24 August 2015��14
David Minnotte v Poland (ICSID Case No ARB(AF)/10/1), Award, 16 May 2014��20
Desert Line Projects LLC v Yemen (ICSID Case No ARB/05/17), Award,
6 February 2008�� 14, 140–2, 144–6, 155
Deutsche Bank AG v Sri Lanka (ICSID Case No ARB/09/02), Award, 31 October 2012��159
Duke Energy Electroquil Partners v Ecuador (ICSID Case No ARB/04/19), Award,
18 August 2008�� 36, 39, 88, 173
Eastern Sugar BV (Netherlands) v Czech Republic (SCC No 008/2004), Partial Award,

27 March 2007��88, 90,195
EDF (Services) Ltd v Romania (ICSID Case No ARB/05/13), Award, 8 October 2009 �� 21, 34, 184
El Paso Energy International v Argentina (ICSID Case No ARB/03/15), Award,
31 October 2011�� 16, 27, 31, 71, 86, 119
Electrabel SA v Hungary (ICSID Case No ARB/07/19), Decision on Jurisdiction, Applicable
Law and Liability, 30 November 2012 ��104
xvii
Table of Cases xvii

Elettronica Sicula SpA (ELSI) (US v Italy) [1989] ICJ Rep 15 ��32, 105
Elettronica Sicula SpA (ELSI) (US v Italy) [1989] ICJ Rep 15, Dissenting Opinion of Judge
Schwebel ��32
Eli Lilly v Canada (ICSID Case No UNCT/14/2), Government of Canada, Rejoinder
Memorial, 8 December 2015��132
Emmis International Holding BV (ICSID Case No ARB/12/2), Award,
16 April 2014�� 1, 2, 41, 110, 184
Emmis International Holding BV v Hungary (ICSID Case No ARB/12/2), Request for
Arbitration, 28 October 2011��1
EnCana Corporation v Ecuador (LCIA), Award, 3 February 2006 ��133
Energoalians SARL v Moldova (UNCITRAL), Arbitral Award, 23 October 2013�� 16, 17
Enron Corporation Ponderosa Assets LP v Argentina (ICSID Case No ARB/01/3), Award,
22 May 2007��33
Enron Corporation v Argentina (ICSID Case No ARB/01/3), Decision on the Application for
Annulment of the Argentine Republic, 30 July 2010 ��121
Eureko BV v Poland (ad hoc arbitration), Partial Award, 19 August 2005��4
Eureko BV v Slovakia (UNCITRAL), Award on Jurisdiction, Arbitrability and Suspension,
26 October 2010��195
Europe Cement Investment & Trade SA v Turkey (ICSID Case No ARB(AF)/07/2), Award,
13 August 2009��186
Factory at Chorzow (Germany v Poland) Series A No 17 (1928)��67, 71, 74, 76, 78, 86, 92–3, 95
Fireman’s Fund Insurance Company v Mexico (ICSID Case No ARB(AF)/02/01), Award,
17 July 2006��45
Fisheries Case (United Kingdom v Norway), Judgment of 18 December 1951 [1952]
ICJ Rep 116��156
Fisheries Jurisdiction Case (Germany v Iceland) (1974) ICJ Rep 175��123
Flughafen Zürich AG v Venezuela (ICSID Case No ARB/10/19), Award, 18 November 2014 ��132
Forminster Enterprises Ltd v Czech Republic App No 38238/04 (ECHR, 9 October 2008)��153
Franck Charles Arif v Moldova (ICSID Case No ARB/11/23), Award,
8 April 2013�� 95, 97, 98, 155, 160–1, 188
Franz Sedelmayer v Russia (ad hoc), Arbitration Award, 7 July 1998��51, 85
Fraport AG Frankfurt Airport Services Worldwide v Philippines (ICSID Case No ARB/03/25),
Award, 16 August 2007 ��161,127, 131–2, 144–5, 151, 155–6, 157, 161, 176
Decision on the Application for Annulment of Fraport AG Frankfurt Airport Services
Worldwide, 23 December 2010�� 110, 131–2, 144, 176
Dissenting Opinion of Bernardo Cremades, 19 July 2007�� 146, 156, 158, 175, 176
Award, 10 December 2014�� 106, 141, 185
F-W Oil Interests Inc v Trinidad and Tobago (ICSID Case No ARB/01/14), Award, 3 March
2006�� 167, 182–3
GAMI Investments Inc v Mexico (UNCITRAL), Final Award, 15 November 2004�� 16–7, 26, 28
Gavazzi v Romania (ICSID Case No ARB/12/15), Decision on Jurisdiction, Admissibility
and Liability, 21 April 2015��92
GEA Group Aktiengesellschaft v Ukraine (ICSID Case No ARB/08/16), Award,
31 March 2011�� 31, 80, 164, 179
Generation Ukraine Inc v Ukraine (ICSID Case No ARB/00/9), Award, 16 September 2003��27
Glamis Gold Ltd v USA (UNCITRAL), Award, 8 June 2009�� 17–8, 28, 34, 40, 178
Gold Reserve Inc v Venezuela (ICSID Case No ARB(AF)/09/1), Award, 22 September 2014 ��184
Government of the Province of East Kalimantan v PT Kaltim Prima Coal (ICSID
Case No ARB/07/3), Award on Jurisdiction, 28 December 2009 ��63
xviii
xviii Table of Cases

Grand River Enterprises Six Nations Ltd v USA (UNCITRAL), Award,
12 January 2011��28–9, 166–7
Gustav F W Hamester GmbH & Co KG v Ghana (ICSID Case No ARB/07/24), Award,
18 June 2010�� 141, 165
H&H Enterprises Investments Inc v Egypt (ICSID Case No ARB/09/15), The Tribunal’s
Decision on Respondent’s Objections to Jurisdiction, 5 June 2012��180
Havala v Slovakia App No 47804/99 (ECHR, 12 November 2002)��76
Helnan International Hotels A/S v Egypt (ICSID Case No ARB/05/19), Award, 3 July 2008 ��132
Hentrich v France App No 13616/88 (ECHR, 22 September 1994) ��153–4
Hochtief AG v Argentina (ICSID Case No ARB/07/31), Decision on Liability,
29 December 2014��147
Hussein Nuaman Soufraki v UAE (ICSID Case No ARB/02/7), Decision of the ad hoc
Committee on the Application for Annulment of Mr Soufraki, 5 June 2007�� 108, 110, 132
Iatridis v Greece App No 31107/96 (ECHR, 25 March 1999)��65

İçkale İnşaat Limited Şirketi v Turkmenistan (ICSID Case No ARB/10/24), Award,
8 March 2016��65, 123
Inceysa Vallisoletana SL v El Salvador (ICSID Case No ARB/03/26), Award,
2 August 2006��127–33, 163–5
Inmaris Perestroika Sailing Maritime Services GmbH v Ukraine (ICSID Case No ARB/08/8),
Award, 1 March 2012��92, 149–50
Inmaris Perestroika Sailing Maritime Services GmbH v Ukraine (ICSID Case No ARB/08/8),
Decision on Jurisdiction, 8 March 2010�� 155, 170, 171
International Thunderbird Gaming Corporation v Mexico (UNCITRAL), Arbitral Award,
26 January 2006�� 27, 104, 107, 161
International Thunderbird Gaming Corporation v Mexico (UNCITRAL), Separate Opinion of
Thomas Waelde, December 2005�� 15–6, 27, 161, 196
Ioan Micula v Romania (ICSID Case No ARB/05/20), Decision on Jurisdiction and
Admissibility, 24 September 2008��123
Ioannis Kardassopoulos v Georgia (ICSID Case No ARB/05/18), Award,
3 March 2010�� 52, 54, 55, 56, 66
Ioannis Kardassopoulos v Georgia (ICSID Case No ARB/05/18), Decision on Jurisdiction,
6 July 2007��156
Iurii Bogdanov v Moldova (SCC), Arbitral Award, 22 September 2005 ��59, 121
James v UK App No 8793/79 (ECHR, 21 February 1986)��153

Joseph Lemire v Ukraine (ICSID Case No ARB/06/18), Award, 28 March 2011 ��77
Joseph Lemire v Ukraine (ICSID Case No ARB/06/18), Decision on Jurisdiction and Liability,
14 January 2010�� 2, 31,37–9, 74, 77, 98, 174, 179
Kemal Uzan v Turkey App No 18240/03 (ECHR, 29 March 2011)��130

Klauz v Croatia App No 28963/10 (ECHR, Judgment of 18 July 2013)��111
Klöckner Industrie-Anlagen GmbH v Cameroon (ICSID Case No ARB/81/2), Decision on
Annulment, 3 May 1985 ��120, 169
Kononov v Latvia App No 36376/04 (ECHR, 17 May 2010)��133
Kopecký v Slovakia App No 44912/98 (ECHR, Judgment of 28 September 2004)�� 111, 115, 129
Kopp v Switzerland App No 23224/94 (ECHR, Judgment of 25 March 1998)��111
Legal Status of Eastern Greenland (Norway v Denmark) PCIJ Series A/B No 53 (1933)��8
LESI SpA and Astaldi SpA v Algeria (ICSID Case No ARB/05/3), Decision on Jurisdiction,
12 July 2006�� 140–2, 145–6
LG&E Energy Corporation v Argentina (ICSID Case No ARB/02/1), Decision on Liability,
3 October 2006��31
xix
Table of Cases xix

Libananco Holdings Co Ltd v Turkey (ICSID Case No ARB/06/8), Award, 2 September 2011��184
Libananco Holdings Co Ltd v Turkey (ICSID Case No ARB/06/8), Decision on Annulment,
22 May 2013��123
Libyan American Oil Company (LIAMCO) v Libya (1981) 20 ILM 1��86–7
LLC AMTO v Ukraine (SCC Case No 080/2005), Final Award, 26 March 2008 �� 19, 40, 130,177
Lone Pine Resources Inc v Canada (ICSID Case No UNCT/15/2), Counter-Memorial of the
Government of Canada, 24 July 2015��30
Luigiterzo Bosca v Lithuania (PCA Case No 2011-05), Award, 17 May 2013 �� 2, 131
M Meerapfel Söhne AG v Central African Republic (ICSID Case No ARB/07/10), Arbitral

Award, 12 May 2011 ��92
Malone v Metropolitan Police Commissioner [1979] Ch 344��51
Malone v UK App No 8691/79 (ECHR, 17 December 1982)��51
Mamidoil Jetoil Greek Petroleum Products Societe SA v Albania (ICSID Case No ARB/11/24),
Award, 30 March 2015�� 15, 133, 135, 146–8
Marvin Feldman v Mexico (ICSID Case No ARB(AF)/99/1), Award,
16 December 2002�� 45, 61, 107, 133, 157–8, 185
Masson and van Zon v Netherlands App No 15346/89 (ECHR, Judgment of
28 September 1995)�� 111, 114, 115
Mesa Power Group LLC v Canada (PCA Case No 2012-17), Canada’s Observations on the
Award on Jurisdiction and Merits in Clayton/Bilcon v Canada, 14 May 2015��25
Mesa Power LLC v Canada (PCA Case No 2012-17), Second Submission of the United States
of America, 12 June 2015��30
Metalclad Corporation v Mexico (ICSID Case No ARB(AF)/97/1), Award, 30 August 2000 ��44
Metalpar SA v Argentina (ICSID Case No ARB/03/5), Decision on Jurisdiction,
27 April 2006��146
Metal-Tech Ltd v Uzbekistan (ICSID Case No ARB/10/3), Award,
4 October 2013�� 122, 141, 150–1, 160
Methanex Corporation v USA (UNCITRAL), Final Award of the Tribunal on Jurisdiction and
Merits, 3 August 2005 ��44
Middle East Cement Shipping and Handling Co SA v Egypt (ICSID Case No ARB/99/6),
Award, 12 April 2002�� 20, 45, 53, 81, 88, 152–3, 170
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (1986)
ICJ Rep 14��123
Mobil Investments Canada Inc v Canada (ICSID Case No ARB(AF)/07/4),
Decision on Liability and on Principles of Quantum, 22 May 2012��107
Mohamed Abdulmohsen Al-Kharafi & Sons Co v Libya (ad hoc), Final Arbitral Award,
22 March 2013��95
MTD Equity Sdn Bhd v Chile (ICSID Case No ARB/01/7), Award, 25 May 2004 ��27
MTD Equity Sdn Bhd v Chile (ICSID Case No ARB/01/7), Decision on Annulment,
21 March 2007��107
Mytilineos Holdings SA v Serbia and Montenegro (UNCITRAL), Partial Award on Jurisdiction,
8 September 2006 �� 146, 181
Nations Energy Inc v Panama (ICSID Case No ARB/06/19), Award,

24 November 2010��45
Nemec v Slovakia App No 48672/99 (ECHR, 15 November 2001)��76
Noble Ventures Inc v Romania (ICSID Case No ARB/01/11), Award,
12 October 2005�� 31, 35, 40, 178–9
Occidental Petroleum Corporation v Ecuador (ICSID Case No ARB/06/11), Award,

5 October 2012�� 79–80, 88, 92, 125, 135, 191, 194
Occidental Petroleum Corporation v Ecuador (ICSID Case No ARB/06/11),
Decision on Annulment of the Award, 2 November 2015��80
xx
xx Table of Cases
Occidental Petroleum Corporation v Ecuador (ICSID Case No ARB/06/11), Dissenting
Opinion, 20 September 2012�� 80, 81
OI European Group BV v Venezuela (ICSID Case No ARB/11/25), Award, 10 March 2015��55
Parkerings-Compagniet AS v Lithuania (ICSID Case No ARB/05/8), Award,

11 September 2007 ��45
Patrick Mitchell v DRC (ICSID Case No ARB/99/7), Award, 9 February 2004��85
Patrick Mitchell v DRC (ICSID Case No ARB/99/7), Decision on the Application for
Annulment of the Award, 1 November 2006 ��121
Payment in Gold of Brazilian Federal Loans Contracted in France (France v Brazil)
Series A No 21 (1929) �� 110, 140, 171, 185
Payment of Various Serbian Loans Issued in France (France v Serbia) Series A No 20 (1929)��114
Perenco Ecuador Ltd v Ecuador (ICSID Case No ARB/08/6), Decision on Remaining Issues of
Jurisdiction and on Liability, 12 September 2014��106
Perenco Ecuador Ltd v Ecuador (ICSID Case No ARB/08/6), Interim Decision on the
Environmental Counterclaim, 11 August 2015��92
Petrobart Ltd v Kyrgyzstan (SCC), Award, 29 March 2005��104
Philippines v China (PCA Case No 2013-19), Award, 12 July 2016��124
Phoenix Action Ltd v Czech Republic (ICSID Case No ARB/06/5), Award,
15 April 2009�� 127, 141, 161
Plama Consortium Ltd v Bulgaria (ICSID Case No ARB/03/24), Award,
27 August 2008�� 141, 149, 157, 172–3, 184
Pope & Talbot Inc v Canada (UNCITRAL), Award in Respect of Damages, 31 May 2002��91
Pope & Talbot Inc v Canada (UNCITRAL), Interim Award, 26 June 2000 ��45
PSEG Global Inc v Turkey (ICSID Case No ARB/02/5), Award,
19 January 2007�� 22, 24, 31, 40, 170, 178
PSEG Global Inc v Turkey (ICSID Case No ARB/02/5), Decision on Jurisdiction,
4 June 2004��24, 186
Quasar de Valores SICAV SA v Russia (SCC), Award, 20 July 2012�� 15, 61, 159, 196
Quiborax SA v Bolivia (ICSID Case No ARB/06/2), Award,
16 September 2015 ��21, 45, 49, 84, 86, 88, 120, 134
Quiborax SA v Bolivia (ICSID Case No ARB/06/2), Decision on Jurisdiction,
27 September 2012 �� 145–6, 150, 155, 184, 188
Quiborax SA v Bolivia (ICSID Case No ARB/06/2), Partially Dissenting Opinion of Brigitte
Stern, 7 September 2015 ��67
Railroad Development Corporation v Guatemala (ICSID Case No ARB/07/23), Second

Decision on Objections to Jurisdiction, 18 May 2010��155
Renée Rose Levy de Levi v Peru (ICSID Case No ARB/10/17), Award, 26 February 2014��43
Robert Azinian v Mexico (ICSID Case No ARB(AF)/97/2), Award,
1 November 1999�� 107, 128, 132
Roche v United Kingdom App No 32555/96 (ECHR, Judgment of 19 October 2005)��111
Ronald Lauder v Czech Republic (UNCITRAL), Final Award, 3 September 2001 �� 35, 40, 170, 186
RosInvestCo UK Ltd v Russia (SCC Case No V 079/2005), Final Award,
12 September 2010 ��60, 62,159
RSM Production Corporation v Grenada (ICSID Case No ARB/05/14), Decision on RSM
Production Corporation’s Application for a Preliminary Ruling of
29 October 2009��123
Rumeli Telekom AS v Kazakhstan (ICSID Case No ARB/05/16), Award,
29 July 2008�� 31, 140–2, 145–6
Saba Fakes v Turkey (ICSID Case No ARB/07/20), Award, 14 July 2010 �� 135, 143, 148, 190
Salduz v Turkey App No 36391/02 (ECHR, 27 November 2008)��76
xxi
Table of Cases xxi

Salini Costruttori SpA v Morocco (ICSID Case No ARB/00/4), Decision on Jurisdiction,
16 July 2001��181
Saluka Investments BV v Czech Republic (UNCITRAL), Partial Award,
17 March 2006�� 31, 43, 64, 143, 184
SAUR International SA v Argentina (ICSID Case No ARB/04/4), Award, 22 May 2014��82
SAUR International SA v Argentina (ICSID Case No ARB/04/4), Decision on Jurisdiction
and Liability, 6 June 2012��141
SD Myers v Canada (UNCITRAL), Second Partial Award, 21 October 2002 ��71
Sempra Energy International v Argentina (ICSID Case No ARB/02/16), Award,
28 September 2007 �� 33, 39
Sergei Paushok v Mongolia (UNCITRAL), Award on Jurisdiction and Liability,
28 April 2011�� 19, 156
Seventhsun Holding Ltd v Poland (SCC Case No V 2012/138), Partial Award,
13 October 2015��131
SGS Société Générale de Surveillance SA v Philippines (ICSID Case No ARB/02/6), Decision of
the Tribunal on Objections to Jurisdiction, 29 January 2004��17
Siag v Egypt (ICSID Case No ARB/05/15), Award, 1 June 2009��14, 24, 47, 49, 52, 53, 54, 57,
152, 154, 184
Silver v UK App No 5947/72 (ECHR, 25 March 1983)��154
Southern Pacific Properties (Middle East) Ltd v Egypt (ICSID Case No ARB/84/3), Award on
the Merits, 20 May 1992 �� 60, 87
Southern Pacific Properties (Middle East) Ltd v Egypt (ICSID Case No ARB/84/3), Decision on
Jurisdiction, 14 April 1988��108
Suez, Sociedad General de Aguas de Barcelona SA v Argentina (ICSID Case No ARB/03/17),
Separate Opinion of Arbitrator Pedro Nikken, 30 July 2010�� 30, 76
SwemBalt AB v Latvia (UNCITRAL), Decision by the Court of Arbitration,
23 October 2000�� 61,87–8, 90, 156
Swisslion DOO Skopje v Macedonia (ICSID Case No ARB/09/16), Award,
6 July 2012�� 134, 187–8, 191
Tecnicas Medioambientales Tecmed SA v Mexico (ICSID Case No ARB(AF)/00/2), Award,

29 May 2003��27
Teinver SA v Argentina (ICSID Case No ARB/09/1), Decision on Jurisdiction,
21 December 2012��144, 160
Temple of Preah Vihear (Cambodia v Thailand), Judgment on the Merits [1962] ICJ Rep 6��158
Tenaris SA and Talta –Trading e Marketing Sociedade Unipessoal LDA v Venezuela (ICSID
Case No ARB/11/26), Award, 29 January 2016��49
The Rompetrol Group NV v Romania (ICSID Case No ARB/06/3), Award, 6 May 2013 ��95
Tidewater Investment SRL v Venezuela (ICSID Case No ARB/10/5), Award, 13 March 2015��67
Tokios Tokeles v Ukraine (ICSID Case No ARB/02/18), Award,
26 July 2007�� 142, 143, 146, 147, 149, 150
Total SA v Argentina (ICSID Case No ARB/04/1), Concurring Opinion of Luis Herrera
Marcano, 12 December 2010�� 14, 30
Total SA v Argentina (ICSID Case No ARB/04/1), Decision on Liability, 27 December 2010��108
Trail Smelter Case (US v Canada) RIAA Volume III (1941) 1905 ��105
United States: Anti-Dumping Act of 1916—Report of the Panel (31 March 2000) WT/DS136/R �� 111
United States: Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products
from Germany—Report of the Appellate Body (28 November 2002) WT/DS213/AB/R��116
United States: Sections 301-310 of the Trade Act of 1974—Report of the Panel
(22 December 1999) WT/DS152/R��133
Vannessa Ventures Ltd v Venezuela (ICSID Case No ARB(AF)/04/6), Award,

16 January 2013�� 54, 139, 144, 146, 150
xxii
xxii Table of Cases

Venezuela Holdings BV v Venezuela (ICSID Case No ARB/07/27), Award,
9 October 2014�� 56, 67, 84
Vestey Group Ltd v Venezuela (ICSID Case No ARB/06/4), Award, 15 April 2016��57
Vigotop Ltd v Hungary (ICSID Case No ARB/11/22), Award, 1 October 2014��131, 191
Vincent Ryan v Poland (ICSID Case No ARB(AF)/11/3), Award, 24 November 2015��104
Vito Gallo v Canada (UNCITRAL), Award, 15 September 2011 ��134, 186–7,191
Walter Bau AG (in liquidation) v Thailand (UNCITRAL), Award, 1 July 2009��191

Waste Management Inc v Mexico (ICSID Case No ARB(AF)/00/3), Award, 30 April 2004��26
Wena Hotels Ltd v Egypt (ICSID Case No ARB/98/4), Award, 8 December 2000�� 20, 88, 181
Wena Hotels Ltd v Egypt (ICSID Case No ARB/98/4), Decision on Annulment,
28 January 2002��89
White Industries Australia Ltd v India (UNCITRAL), Final Award, 30 November 2011�� 28, 75, 174
William Clayton v Canada (PCA Case No 2009-04), Award on Jurisdiction and Liability,
17 March 2015�� 25, 29, 38, 40
William Clayton v Canada (PCA Case No 2009-04), Dissenting Opinion of Professor Donald
McRae, 10 March 2015�� 25, 30, 38
William Nagel v Czech Republic (SCC), Final Award, 9 September 2003�� 170, 188–9
World Duty Free Company Ltd v Kenya (ICSID Case No ARB/00/7), Award,
4 October 2006��63, 160
X v Austria App No 19010/07 (ECHR, Judgment of 19 February 2013)�� 111, 115

X v United Kingdom App No 6840/74 (ECHR, Decision on Admissibility of 12 May 1977)��111
Yukos Universal Ltd v Russia (PCA Case No AA 227), Final Award, 18 July 2014 �� 92, 141, 159
1
1
Introduction
During the 1990s, the Republic of Hungary adopted a range of policies designed
to attract foreign investment. As part of this, in 1997, Hungary conducted a tender
for the operation of two national commercial FM radio stations. Following the
tender, broadcasting licences for the two stations were awarded separately to two
foreign investors. The investors operated the stations with some degree of success
until 2009, when the licences were due for renewal. In a 2009 tender process, how-
ever, the investors failed to have their licences renewed, despite enjoying what they
viewed as a legally guaranteed incumbent operator advantage. Instead, the licences
were transferred to inexperienced new operators with close ties to the ruling politi-
cal party. Concern over the tender process, and over later changes in Hungary’s
media laws, was expressed by a range of countries and organizations, including the
European Union, the Council of Europe, various European states, Japan, and the
United States.1
Affronted by the 2009 tender outcome, in October 2011 the investors lodged
notices of arbitration at the International Centre for Settlement of Disputes
(ICSID), relying on the UK–Hungary, Netherlands–Hungary, and Switzerland–
Hungary bilateral investment treaties (BITs). According to the investors, the ‘scan-
dalously flawed’ tender process amounted to an unlawful expropriation of their
investment in Hungary, violating the BITs and deserving compensation.2 Two sep-
arate tribunals were constituted to hear the claims. In April 2014 and 2015, the two
tribunals rendered their final decisions on each claim. Both tribunals hinted that
the investors had a reasonable case on the merits, and that Hungary’s conduct left
much to be desired.3 However, both tribunals rejected jurisdiction over the claims,
and the investors received no compensation.
As a dispute brought under treaties relating to rights granted in interna-
tional law, the radio investors’ claims were largely governed by international law.
However, despite the international framework of the dispute, unavoidable and
crucial questions of domestic (Hungarian) law lay at the heart of the expropria-
tion claim. As one of the tribunals observed, an investor cannot be expropriated
1 Emmis International Holding BV (ICSID Case No ARB/12/2), Award, 16 April 2014 [42]–[44];
Accession Mezzanine Capital LP v Hungary (ICSID Case No ARB/12/3), Award, 17 April 2015 [55].
2 Emmis International Holding BV v Hungary (ICSID Case No ARB/12/2), Request for Arbitration,
28 October 2011 [3]‌.
3 Emmis (n 1) [261]; Accession Mezzanine (n 1) [190], [200].
Domestic Law in International Investment Arbitration. First Edition. Jarrod Hepburn. © Jarrod
Hepburn 2017. Published 2017 by Oxford University Press.
2
2 Introduction
if it has no property in the first place.4 Importantly, whether or not the investors
had any property required a determination of whether Hungarian law granted a
property right in the outcome, or the process, of the 2009 tender (as the inves-
tors had argued). Applying Hungarian law, the tribunals in both cases ruled that,
while the investors might have been well placed to win the tender, and while they
had a right to expect the tender to be conducted fairly and transparently, they had
no property rights that could have been expropriated by Hungary. Because of this
fundamental question of domestic law, the tribunals denied jurisdiction, and the
investors’ claims failed.5
The investors’ claim of expropriation under BITs governed by international
law, then, ultimately depended almost entirely on the answer to a question
of Hungarian domestic law.6 This scenario is not by any means unusual. The
Hungarian radio investor cases are only one instance of a commonplace phenome-
non in international investment law: claims made under BITs, ostensibly governed
by international law, depend in various respects on questions of domestic law.7
Such questions include the attribution of conduct to the state, the nationality of
an investor, the existence of property rights under host state law, the breach of an
‘umbrella’ clause, and an investor’s compliance with domestic law when making
an investment.8 All these questions call for consideration of the law of the host
state in order to resolve some issue relevant for the remainder of the international
law claim.
In spite of the significant role of domestic law, however, much of the academic
discussion in the field of investment law has concentrated on questions of inter-
national law. Several authors have examined the meaning of the guarantee of ‘fair
4 Emmis (n 1) [159].
5 As the Emmis tribunal observed (at [144]), the cases might well have ended differently if the rel-
evant BITs had included consent to arbitration over alleged breaches of another common investment
treaty protection, the fair and equitable treatment standard. This standard would not require the strict
proof of property rights called for by an expropriation claim. Other cases relating to flawed tender
processes, such as Lemire v Ukraine or Bosca v Lithuania, have indeed succeeded on claims of breach of
fair and equitable treatment.
6 The term ‘domestic law’ in this book is considered to be equivalent to the potential alternatives
of ‘municipal law’, ‘local law’, ‘internal law’, or ‘national law’. While J Crawford, Brownlie’s Principles
of Public International Law (8th edn, OUP 2012) 48, considers the various terms to have ‘slightly dif-
ferent connotations’, this book treats the terms as interchangeable, as do HE Kjos, Applicable Law in
Investor-State Arbitration: The Interplay between National and International Law (OUP 2013) 14, and G
Cook, A Digest of WTO Jurisprudence on Public International Law Concepts and Principles (CUP 2015)
187. The intention is to encompass all products of a state’s legal system, including laws adopted at fed-
eral, state/provincial, or city/municipality levels, as well as judicial precedents where these constitute a
source of law, as in common law systems.
7 The general problem of interaction between domestic law and international law in international
courts and tribunals is certainly not a new one. For instance, CW Jenks, ‘The Interpretation and
Application of Municipal Law by the Permanent Court of International Justice’ (1938) 19 BYIL 67,
describes many situations in which the PCIJ was, or might have been, required to apply municipal law.
8 See, e.g., A Newcombe and L Paradell, Law and Practice of Investment Treaties: Standards of
Treatment (Kluwer 2009) 92–5; C McLachlan, L Shore and M Weiniger, International Investment
Arbitration: Substantive Principles (OUP 2007) 69–70, 182–4; M Sasson, Substantive Law in Investment
Treaty Arbitration: The Unsettled Relationship between International and Municipal Law (Kluwer 2010)
xxviii–xxx.
3
Introduction 3
and equitable treatment’ commonly found in investment treaties.9 The definition

of indirect or regulatory expropriation in international law has been extensively
analysed.10 Other writers have delved into controversies over the extension of the
most-favoured-nation (MFN) clause to dispute settlement,11 or over the scope of
the ‘necessity’ defence (which has been relevant in many claims against the Republic
of Argentina).12 More recent literature has turned to the utility of proportionality
arguments,13 the role of human rights in investment arbitration,14 and the poten-
tial for a doctrine of ‘margin of appreciation’ to assist arbitrators in balancing the
public and private interests that are often in tension in investment treaty disputes.15
Meanwhile, the place of domestic law in these highly charged, sensitive arbitrations
9 M Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (OUP
2013); A Diehl, The Core Standard of International Investment Protection: Fair and Equitable Treatment
(Kluwer 2012); R Kläger, ‘Fair and Equitable Treatment’ in International Investment Law (CUP 2011);
I Tudor, The Fair and Equitable Treatment Standard in the International Law of Foreign Investment
(OUP 2008).
10 S López Escarcena, Indirect Expropriation in International Law (Edward Elgar 2014); J Dalhuisen
and A Guzman, ‘Expropriatory and Non-Expropriatory Takings under International Investment Law’
(2012) UC Berkeley Public Law Research Paper 2137107 <ssrn.com/abstract=2137107>; T Gazzini,
‘Drawing the Line between Non-Compensable Regulatory Powers and Indirect Expropriation of
Foreign Investment: An Economic Analysis of Law Perspective’ (2010) 7 Manchester J Intl Econ L 36;
Y Fortier and S Drymer, ‘Indirect Expropriation in the Law of International Investment: I Know It
When I See It, or Caveat Investor’ (2004) 19 ICSID Review 293.
11 Z Douglas, ‘The MFN Clause in Investment Arbitration: Treaty Interpretation off the Rails’
(2011) 2 JIDS 97; K Hobér, ‘MFN Clauses and Dispute Resolution in Investment Treaties: Have
We Reached the End of the Road?’ in C Binder and others, International Investment Law for the
21st Century: Essays in Honour of Christoph Schreuer (OUP 2009); Y Radi, ‘The Application of
the Most-Favoured-Nation Clause to the Dispute Settlement Provisions of Bilateral Investment
Treaties: Domesticating the “Trojan Horse” ’ (2007) 18 EJIL 757.
12 K Chubb, ‘The State of Necessity Defense: A Burden, Not a Blessing to the International
Investment Arbitration System’ (2013) 14 Cardozo J Conflict Resolution 532; A Kent and A
Harrington, ‘The Plea of Necessity under Customary International Law: A Critical Review in Light of
the Argentine Cases’ in C Brown and K Miles (eds), Evolution in Investment Treaty Law and Arbitration
(CUP 2011); A Reinisch, ‘Necessity in Investment Arbitration’ (2010) 41 NYIL 137.
13 G Bücheler, Proportionality in Investor- State Arbitration (OUP 2015); C Henckels,
Proportionality and Deference in Investor-State Arbitration (CUP 2015); E Leonhardsen, ‘Looking for
Legitimacy: Exploring Proportionality Analysis in Investment Treaty Arbitration’ (2012) 3 JIDS 95;
A Stone Sweet, ‘Investor-State Arbitration: Proportionality’s New Frontier’ (2010) 4 Law and Ethics
of Human Rights 47.
14 LW Mouyal, International Investment Law and the Right to Regulate: A Human Rights
Perspective (Routledge 2016); J Calamita, ‘International Human Rights and the Interpretation of
International Investment Treaties: Constitutional Considerations’ in F Baetens (ed.), Investment Law
within International Law: Integrationist Perspectives (CUP 2013); E de Brabandere, ‘Human Rights
Considerations in International Investment Arbitration’ in M Fitzmaurice and P Merkouris (eds),
The Interpretation and Application of the European Convention of Human Rights: Legal and Practical
Implications (Martinus Nijhoff 2012); B Simma, ‘Foreign Investment Arbitration: A Place for
Human Rights?’ (2011) 60 ICLQ 573; T Nelson, ‘Human Rights Law and BIT Protection: Areas of
Convergence’ (2011) 12 JWIT 27; PM Dupuy, EU Petersmann, and F Francioni (eds), Human Rights
in International Investment Law and Arbitration (OUP 2009); J Fry, ‘International Human Rights
Law in Investment Arbitration: Evidence of International Law’s Unity’ (2007) 18 Duke J Comp &
Intl L 77.
15 C Henckels, ‘Balancing Investment Protection and the Public Interest: The Role of the Standard
of Review in Investor-State Arbitration’ (2013) 4 JIDS 197; A Katselas, ‘Do Investment Treaties
Prescribe a Deferential Standard of Review?’ (2012) 34 Mich J Intl L 87; A Roberts, ‘The Next
Battleground: Standards of Review in Investment Treaty Arbitration’ (2011) 16 ICCA Congress Series
4
4 Introduction
has received somewhat less attention, notwithstanding its frequent centrality to the
outcome of the case (as the Hungarian radio investors’ claims show).
At first glance, it might not be surprising that questions of domestic law are
largely ignored by commentators. With more than one hundred states having
now faced at least one investment treaty claim,16 commentators in the global
environment of international law are keen to focus on issues of common impor-
tance across the claims rather than the peculiarities of one hundred legal sys-
tems. This will naturally mean a focus on the portions of tribunals’ awards that
relate to issues of international law. The substance of Polish law might have been
highly relevant to Dutch insurance firm Eureko’s 2005 claim against Poland,
for instance,17 but scholars may not see how its relevance would extend to other
investment treaty claims.18 The substance of domestic law might be significant
for individual disputes, but it is not necessarily significant for the system of
investment arbitration.
As will be explained further below, however, the concern of this book is not with
the substance of domestic law in host states around the world. Rather, the book’s
first concern is with the range of situations in which domestic law is relevant in an
investment arbitration. The book’s second concern is with the process and meth-
odology used by international arbitrators to determine the substance of domes-
tic law when necessary to resolve an international law claim. These two process
questions—of when, and how, tribunals should deal with domestic law issues—
have significant ramifications. Both questions relate to the appropriate interaction
between domestic and international law in this area. As the next section explains,
disagreement over this interaction plays a large role in the ‘legitimacy crisis’ cur-
rently said to be plaguing investment arbitration.
1.1 Legitimacy and the ‘Backlash’

against Investment Arbitration
Tensions between domestic prerogatives and international oversight are at the heart
both of historical doctrines on the treatment of aliens and of modern investment
treaty arbitration. For most of the twentieth century, debates over the customary
international law on foreign investment centred on the existence of an international
170; W Burke-White and A von Staden, ‘Private Litigation in a Public Law Sphere: The Standard of
Review in Investor-State Arbitrations’ (2010) 35 Yale JIL 283.
16 UNCTAD, World Investment Report 2016 (UN 2016) 104.
17 See Eureko BV v Poland (ad hoc), Partial Award, 19 August 2005; for analysis of the domestic law
aspects, see Z Douglas, ‘Nothing If Not Critical for Investment Treaty Arbitration: Occidental, Eureko
and Methanex’ (2006) 22 Arb Intl 27.
18 Apart from further claims against Poland in respect of the same domestic legal measures.
Certainly, many cases against Argentina have related to the same legal measures taken by that state
at the height of its 2001 financial crisis. For background, see, e.g., W Burke-White, ‘The Argentine
Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System’ in M Waibel and
others (eds), The Backlash against Investment Arbitration (Kluwer 2010).
5
Introduction 5
minimum standard of treatment of aliens. Capital-exporting countries, keen to

protect the interests of their nationals abroad, argued that such a universal standard
existed and that all states were bound to accord it to aliens conducting business
within them. Other countries, largely Latin American ones, argued that foreign-
ers in a host state could expect no better treatment than the standards that were
accorded by domestic law to locals in that state.19
More recently, this Latin American position, the so-called ‘Calvo Doctrine’,20
appeared to have been rejected, with the emergence of the extensive BIT network.
Apart from enshrining an international minimum standard in their provisions,
BITs also eschew the usual international law requirement to exhaust local rem-
edies in the host state before pursuing an international remedy.21 This would seem
to deny the relevance of domestic standards and place the analysis firmly on the
international plane.
However, in recent years many writers have questioned the legitimacy of the new
investment treaty regime.22 Although the bases for the criticisms are varied, one
common theme among them relates to a perceived failure of investment tribunals
to pay sufficient attention to domestic policy concerns.23 Thus, when interpreting
investment treaties, arbitrators have in some cases privileged the treaties’ narrow
objectives of foreign investor protection, while downplaying other broader domes-
tic objectives of sustainable development and general welfare.24 Writers have noted
the typical absence of health or environmental exceptions in investment treaties,
unlike in the frequently compared World Trade Organization (WTO) system.25
Some have expressed concern over tribunals’ narrow interpretations of the excep-
tions that do exist, such as the ‘necessity’ exception.26 Similar concerns are seen
regarding the effects of wide interpretations of the substantive investor protec-
tions.27 Other authors (and even courts) have commented on the discrimination
19 See generally Newcombe and Paradell (n 8) ch. 1.

20 See generally D Shea, The Calvo Clause: A Problem of Inter-American and International Law
and Diplomacy (University of Minnesota Press, Minneapolis 1955); W Shan, ‘From “North-South
Divide” to “Private-Public Debate”: Revival of the Calvo Doctrine and the Changing Landscape in
International Investment Law’ (2007) 27 Northwestern J Intl L and Bus 631.
21 R Dolzer and C Schreuer, Principles of International Investment Law (2nd edn, OUP 2012) 264–7.
22 See generally Waibel (n 18) and sources cited at D Desierto, ‘Human Rights and Investment
in Economic Emergencies: Conflict of Treaties, Interpretation, Valuation Decisions’ (Third Biennial
Global Conference of the Society of International Economic Law, Singapore, July 2012) fns 12–
15 <ssrn.com/abstract=2101795>.
23 J Alvarez, ‘The Public International Law Regime Governing International Investment’ (2009)
344 RdC 193, 246–252; S Spears, ‘The Quest for Policy Space in a New Generation of International
Investment Agreements’ (2010) 13 JIEL 1037; M Sornarajah, Resistance and Change in the International
Law on Foreign Investment (CUP 2015). For a more supportive view of the system’s legitimacy, see, e.g.,
D Krishan, ‘Thinking About BITs and BIT Arbitration: The Legitimacy Crisis That Never Was’ in T
Weiler and F Baetens (eds), New Directions in International Economic Law (Martinus Nijhoff 2011).
24 Newcombe and Paradell (n 8) 64.
25 A Newcombe, ‘General Exceptions in International Investment Agreements’ in MC Cordonier
Segger, M Gehring, and A Newcombe (eds), Sustainable Development in World Investment Law (Kluwer
2011) 357.
26 A Bjorklund, ‘The Necessity of Sustainable Development’ in Cordonier Segger, Gehring, and
Newcombe (n 25).
27 Alvarez (n 23) 248.
6
6 Introduction
inherent in granting relatively strong protections to foreign investors under inter-
national law while leaving domestic investors with often weaker protections under
local law.28
Some commentators have developed sophisticated critiques of the reasoning of
investment tribunals underpinned by democratic and political theory.29 Andreas von
Staden, for instance, has argued that principles of normative subsidiarity should push
international investment tribunals to show significant degrees of deference to the deci-
sions of host states before responsibility can be found for breach of an investment
treaty.30 Armin von Bogdandy and Ingo Venzke question the democratic legitimacy of
international adjudicators, and suggest their re-orientation towards the ‘cosmopolitan
citizen’.31 Gus van Harten has advocated comprehensive reform of the system based on
the view that investment tribunals perform roles analogous to domestic courts in judi-
cial review actions, and should therefore be bound by similar standards of review and
notions of deference to the decisions of the (domestic) political branches.32 A range
of other authors, including Stephan Schill and Benedict Kingsbury, have emphasized
the role of investment tribunals in global governance, with arbitrators ruling on the
public law obligations of states under broadly worded standards; these authors call for
appropriate standards of review and deference to fit with that role.33
Despite being the original authors of BITs and facilitating instruments such
as the ICSID Convention, states themselves have taken many of these criticisms
to heart. Countries including South Africa, Ecuador, Indonesia, Venezuela, and
Bolivia have withdrawn from the ICSID Convention and/or terminated existing
investment treaties.34 Venezuela, Argentina, and Zimbabwe have refused to pay
many awards rendered against them.35 Australia resolved to exclude the mechanism
28 V Lowe, ‘Changing Dimensions of International Investment Law’ (2007) Oxford Legal Studies
Research Paper No. 4/2007, 48–9 <ssrn.com/abstract=970727>; M Sornarajah, The International
Law on Foreign Investment (3rd edn, CUP 2010) 338; Colombian Constitutional Court, Case No
C-358/96 <www.corteconstitucional.gov.co/relatoria/1996/C-358-96.htm>. See also A de Mestral
and R Morgan, Does Canadian Law Provide Remedies Equivalent to NAFTA Chapter 11 Arbitration?
(CIGI 2016).
29 See generally Roberts (n 15).
30 A von Staden, ‘Democratic Legitimacy of Judicial Review Beyond the State: Normative
Subsidiarity and Judicial Standards of Review’ (2012) 10 ICON 1023; Burke-White and von Staden
(n 15). Nollkaemper has made a similar subsidiarity-based argument in respect of the relations between
the ICJ and domestic law, suggesting that ‘national authorities are better positioned [than international
bodies] to assess the factual and legal context of a dispute’: A Nollkaemper, ‘The Role of Domestic
Courts in the Case Law of the International Court of Justice’ (2006) 5 Chinese JIL 301, 318.
31 A von Bogdandy and I Venzke, ‘In Whose Name? An Investigation of International Courts’
Public Authority and its Democratic Justification’ (2012) 23 EJIL 7.
32 G van Harten, Investment Treaty Arbitration and Public Law (OUP 2007).
33 B Kingsbury and S Schill, ‘Investor- State Arbitration as Governance: Fair and Equitable
Treatment, Proportionality and the Emerging Global Administrative Law’ (2009) IILJ Working Paper
2009/6 <www.iilj.org/publications/documents/2009-6.KingsburySchill.pdf>. See also Dolzer and
Schreuer (n 21) 24–5.
34 Sornarajah (n 23) 1. Various EU states have also terminated (intra-EU) BITs, although not neces-
sarily out of dissatisfaction with the system: UNCTAD (n 16) 102.
35 J Dahlquist and LE Peterson, ‘Analysis: As Venezuela’s ICSID Debt Hits $4.6 Billion (Before
Interest), Two Ad Hoc Committees Offer Differing Approaches to Requests that Stays of Enforcement
Be Lifted’ (2016) 9(10) Investment Arbitration Reporter <tinyurl.com/hwebcbs>; LE Peterson,
Another random document with
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but not always connected with, right motor paralysis we have the
inability to use words in speaking, known as aphasia, aphemia,
alalia, and others. The first of these names is the one most
frequently used. Agraphia is the inability to use words in writing.
On the receptive side we have the inability to understand language

as presented to the eye (word- or psychic blindness) or to the ear
(word- or psychic deafness). A case of the former condition has
already been spoken of. One still more singular was reported by
Mdlle. Skwortzoff,37 where the patient, not being blind, could not
understand letters presented to the eye, but could read with the
fingers and understand raised letters like those used by the blind. In
a case of the latter kind a man whose ears were normal, and who
could distinguish different sounds, answered questions, but entirely
at random, though he could read and understand what was written.
All these defects are manifestly connected with a peculiar loss of
memory, and hence the word amnesia is used sometimes to cover
part of the group, and amnesic as an adjective to qualify aphasia.
37 Comptes Rendus de la Société de Biologie, 1883, p. 319.
It should, of course, be understood that the muscles are not

paralyzed, so that glottis, lips, tongue, and fingers are capable of
making the necessary movements to produce words, and, on the
other hand, that the senses of sight and hearing are intact. Aphasia
was confounded by some of the older writers with paralysis of these
organs, and the whole grouped together under the name of alalia.
Even now the distinction is not always clearly observed.
The act of speaking, according to Kussmaul,38 consists in three

stages or processes: the preparation in the intelligence and feelings
of the matter to be uttered; the diction, or the formation of the words
internally, together with their syntax; the articulation, or formation of
words outwardly, irrespective of their connection with one another in
the matter spoken. Defects in the first condition have already been
spoken of. In the entire absence of mind, as in the deepest apoplexy,
aphasia can hardly be said to exist, and it is only later that it
becomes manifest. If the second stage is defective, amnesic aphasia
exists, and if the third, ataxic. In the great majority of cases of
aphasia the loss of memory is the most important factor; and as this
exists whatever be the mode in which it is desired to express the
idea, amnesic aphasia is accompanied by agraphia. In those cases,
however, in which the patient retains a few words, they are not
always the same for speech and writing. Occasionally an instance is
found where a person can write perfectly well and possesses
complete intelligence, but is unable to speak a word. This is pure
ataxic aphasia, and is certainly rare. An ataxic agraphia is less easy
to detect, since the aphasic patient is likely to be paralyzed upon the
right side, and thus unable to write, even if he remembers the words,
until educated upon the left side.
38 Ziemssen's Cyclopædia.
There are many degrees and kinds of amnesic aphasia, and, in fact,
every case is a study by itself. The slightest might be called
physiological; at any rate, it is sufficiently common among people
supposed to be well, and consists in the failure to recollect in time for
use the name, most frequently of a person, but sometimes of a thing,
which is really well known, is recognized at once if suggested, and
perhaps returns spontaneously at a later period. Another person may
forget only some words which are not recalled at any time, or parts
of words. A man appeared among the out-patients at St.
Bartholomew's Hospital who had his name written on a piece of
paper, because he could not say it, but could carry on a long
conversation. There were a few other words he could not say. The
more complete cases have no vocabulary at all, or only a few words
or syllables applied to all purposes, and perhaps an exclamation or
two. In these cases the patient may know perfectly well that he is not
expressing his ideas, and he may recognize perfectly well the word
when it is told to him or reject a wrong one. If he be, as happens in
nearly all cases, unable to pronounce the word after he has
recognized it as the one he wished for, there is a combination of
ataxic and amnesic aphasia. Incorrect or deficient words may be
corrected or supplemented by gestures or intonation. “Yes” may do
duty without confusion for “yes” or “no,” according to the tone.
Oaths may be retained, and sometimes an exclamation may be
uttered with perfect propriety of application which cannot be
repeated deliberately a moment afterward. This emotional use of
words may be considered akin to the movement executed by
paralyzed limbs under the stimulus of a movement taking place
elsewhere, and may lead to an erroneous prognosis of recovery.
This curious fact, that more or less automatic expressions are
possible when deliberately-willed pronunciation is not, is a probable
explanation for the observation which has occasionally been made
that an aphasic patient is able to sing words which he cannot speak.
Paraphasia is the use of the wrong words, or of phrases which carry

an entirely different meaning from that intended, as when
Trousseau's patient receives a guest with politeness and invites her
to be seated with the words “cochon, animal, fichue bête,” or an old
paralytic, when a lady declines to drive with him, answers with great
suavity, “It don't make any damnation to me whether you go or not.”
Word-blindness is more common than word-deafness, and is a

frequent accompaniment of aphasia. Rostan, the well-known author
of the work on softening of the brain, experienced an attack of
aphasia lasting a few hours. The symptom which first attracted his
attention was the inability to understand the book, by no means
abstruse, which he was reading. He was, however, able carefully to
observe his own symptoms, and made signs to be bled, which
operation was followed by relief.
Gouty aphasia has been described in a man aged thirty-seven who

on several occasions became aphasic, with recovery in a short time.
This condition was connected with localized paralysis, and once with
entire right hemiplegia. Afterward it was accompanied by
convulsions. In the intervals the patient was in fair health.39 It is
difficult to imagine the lesion in this case. The reporter speaks of
“sudden blocking by a gouty thrombus,” but nothing is known of any
thrombus which can disappear so rapidly. Ball40 describes twelve
attacks of aphasia occurring within nine months, and accompanied
by slight paresis and convulsive movements in the right hand. The
patient suffered habitually from migraine. He supposes the cause to
have been a temporary anæmia.
39 Brit. Med. Journ., Aug. 28, 1880.
40 L'Encephale, 1883, 2.
Aphasia may be entirely unconnected with motor paralysis, and is

then likely to be of shorter duration, though just as complete. Most of
these cases probably do not depend upon a lesion of the same kind
as when aphasia is only one of several severe symptoms. It shows
how delicate a function of the brain memory for words may be, and is
possibly the result of a temporary malnutrition or a change in the
vascular supply. It has been observed in various conditions of
debility and after acute disease. Rostan was diabetic. It has been
seen after chloroform narcosis, after santonin (5 cgr.), after fright,
and is said to be one of the ordinary symptoms after the bite of
venomous serpents. Aphasia and paraphasia may be met with in
thorough bromization, and, naturally enough, may be part of the
symptomatology of general paralysis. In other cases, even when it is
the principal symptom, it depends upon an organic lesion, and is not
infrequently the precursor of a more fully-developed attack. The
diagnosis is of great importance, and other traces of paralysis should
be carefully sought for. This symptom is far more common with
occlusion of the vessels than with hemorrhage, though not unknown
with the latter.41
41 Lancet, Oct. 11, 1884, p. 655.
By far the most common situation of the softening or hemorrhage

which gives rise to aphasia is in the third left frontal convolution
(convolution of Broca) or the white substance immediately underlying
it. The island of Reil may be involved in some cases where but little
damage is done to the third frontal.
In a respectable minority of cases aphasia may be associated with

left hemiplegia. A case where a tumor in the third right frontal
convolution was found in a case of aphasia is reported by
Habershon.42 It is not stated whether the patient was left-handed.
Some of these cases constitute those exceptions which prove the
rule, inasmuch as the patient is left-handed, and Hughlings-Jackson
has shown that the relationship of aphasia to the side which is
congenitally pre-eminent, and which is in the vast majority of human
beings the right side, is not destroyed by a partial education of the
other side to such acts as writing or using a knife.
42 Med. Times and Gaz., 1881, i.
A lesion in the pons may give rise to aphasia or something closely

resembling it, but it is probable that a careful distinction of true
aphasia, both amnesic and aphasic, from paralysis or inco-ordination
of the muscles of speech, would reduce the number of these cases,
and bring the symptom into closer relations with the usual cortical
lesions.
A case of congenital aphasia with right hemiplegia has been

described.43 When six years old the boy was well developed, though
less so on the paralyzed side; intelligent; heard well, but could say
only a few words, and those badly. Whatever the lesion, which is
thought by the author to have been in the speech-centre, but which
may not improbably have been in the pons, it is interesting, as
showing that the development of the speech-centre is certainly not
accomplished by education.
43 Centralblatt f. d. Med. Wiss., 1873, p. 299.
Post-paralytic chorea is an affection the nature of which is indicated

by its name. As the hemiplegia disappears, irregular movements are
developed in the paralyzed limbs, sometimes closely resembling
ordinary chorea, and at others consisting of irregular movements, as
closing and spreading of the fingers, with curious and bizarre
stiffenings, extensions, and contractions, sometimes known as
athetosis, or in others still a tremor resembling paralysis agitans.
These usually cease during sleep. It is very apt to be associated with
hemianæsthesia more or less complete, though this may be
represented by only a certain amount of numbness. A hemiathetosis
has been observed to be gradually developed from a post-
hemiplegic hemichorea of the more ordinary form.44
44 Archiv für Psychiatrie, xii. 516.
This affection is not a common one, and Weir Mitchell states that it is
common in inverse proportion to the age. He thinks it possible that
some of the congenital choreas may be the result of, or at least
closely connected with, intra-uterine cerebral paralysis. It remains for
years or for life. In the absence of history such a case might present
difficulties of diagnosis from the more usual hemichorea, which is not
infrequently accompanied by considerable weakness of the affected
side.
The temperature in the early days of both hemorrhage and embolism

has been described. At a later period of the hemiplegia it remains in
the neighborhood of normal. The temperature of the affected side is
often higher than that of the sound one for an indefinite period, but in
many cases sinks below if atrophy takes place. The time at which
the change occurs is extremely variable. Out of ten cases reported
by Folet,45 in two of them for three years and one year after the
attack the paralyzed side was eight-tenths and six-tenths of a degree
respectively the warmer. In three others, of twenty months, four and
six years, it was the same on both sides, and in the remaining five
the paralyzed limb was a little the cooler. In the last eight there was
more or less atrophy.
45 Gaz. hébd., 1867.
The coincidence of rise of temperature with vascular relaxation has

already been noted under the head of Cerebral Hemorrhage. It is not
difficult to explain why a vascular paralysis in a comparatively well-
nourished limb, especially when the heart is vigorous, may, by
allowing a larger amount of warm blood to circulate, raise the
temperature, when the same paralysis with atrophied muscles, weak
heart, and impaired general health, merely furnishes a larger
reservoir in which the slowly-moving blood may be cooled. The
accompanying charts represent the difference of temperature
between the two sides in two cases of hemiplegia, the first, O. G. T.
(Fig. 41), from embolism, and the second, J. B. (Fig. 42), from
hemorrhage, the observation being made within two or three weeks
of the attack. The dotted line is from the paralyzed side. A subjective
feeling of coldness is not uncommon in paralyzed limbs.
FIG. 41.
FIG. 42.
The modifications undergone by the urine in a case of cerebral
hemorrhage are increase of quantity amounting to polyuria, the urine
becoming limpid and afterward returning to the usual color; a
diminution in the quantity of urea coinciding with the fall of
temperature, and afterward a return to the normal or even above it.
When this augmentation is considerable, it constitutes at the same
time with a marked elevation of temperature an unfavorable
prognostic sign.46 In a case under the observation of the writer,
probably of thrombosis, the acid urine has been remarkable for the
amount of mucus contained in it, so that it pours from one vessel to
another like white of egg. There is a small amount of pus, but no
vesical irritation whatever.
46 Ollivier, Archives de Physiol., 1876.
Since the trophic centres for the muscles are situated in the spinal
cord, cerebral hemiplegia, which does not cut off their connection,
does not produce the rapid wasting seen in some cases of spinal
paralysis, unless descending degeneration involves the anterior gray
columns. The limbs preserve their fulness for a time, although the
muscular masses become flabby and slowly atrophy for want of use.
This atrophy, however, seldom becomes extreme. The skin of the
hands becomes dry, the folds at the knuckles disappear, and the
hand loses its expression, looking more like a stuffed glove. The
change, however, is not much greater than may be seen in a hand
kept for a long time in a bandage. The growth of the nails is retarded,
as may be seen by staining them with nitric acid.
If there is any tendency to œdema, as when nephritis is complicated

with hemiplegia, the swelling is likely to be much greater upon the
paralyzed side. In the adult, of course, there can be no question of
the growth of limbs, but when a child becomes hemiplegic from
cerebral disease, the limbs grow more slowly and remain smaller, as
in a case of ordinary infantile palsy or anterior poliomyelitis.
Much importance has been attached to the fact that large sloughs
form with great rapidity upon the nates of the paralyzed side, and
Charcot says that this tendency is greater than can be accounted for
in any mechanical way. He therefore thinks that a direct trophic
influence of the brain upon nutrition is shown. At the very most,
however, that can only be a contributory cause, and the freedom of
other portions from a similar condition—and that, too, in regions
farther removed from the centres of circulation—makes it highly
improbable that anything more is necessary to account for it than the
less sensitiveness of that side to irritation from urine, roughnesses in
the bed, or pressure, and hence neglect. The writer, among a very
considerable number of hemiplegias, fatal and otherwise, does not
remember to have seen a well-marked case of the kind. Scrupulous
cleanliness and changing the position sufficiently often make the
preference for the paralyzed side a very slight one.
Arthropathies, consisting in a vegetating, and sometimes an
exudative, synovitis, and accompanied by swelling, redness, and
pain, are sometimes observed, especially in the upper extremity.
They do not appear until fifteen days or a month after the attack.
The most significant change which occurs in the course of a

hemiplegia is the development of increased reflexes and rigidity and
contracture. After some weeks or months, during which the aspect of
the case has not essentially changed, the limbs remaining in the
same condition, it will be found on examination that the patellar
reflex has become quite energetic, and ankle clonus developed upon
the paralyzed side; the arm reflexes from the triceps, biceps, and
supinator longus are much exaggerated. This has the same meaning
as when similar phenomena are found with spinal disease, and
signifies descending degeneration of the postero-lateral columns of
the spinal cord, the crossed peduncular tracts. This degeneration
may sometimes be traced completely down from the situation of the
lesion in the cortical motor centres through the basal ganglia, crura,
decussation, and cord. The fuller development of this condition is the
contracture or rigidity, which was at one time referred to secondary
changes taking place in the neighborhood of the original lesion, as
well as to a purely reflex action having no relation to the
degeneration of the cord.
The arms are usually flexed at the elbow, the wrists on the arm, and
the fingers in the hand. Sometimes, however, the arm is straight. The
leg, which is not always affected to the same extent, is generally in
extension, though the toes are likely to be flexed. Attempts to move
the limbs are resisted strongly, and in such a way as to show the
reflex nature of the phenomenon. If an attempt be made to open the
fingers of a contractured hand slowly and carefully, it can be often
accomplished and the hand held open with but little pressure, but if it
is twitched the fingers resist like a spring. The violent attempt to
overcome rigidity is often painful.
In some rare cases rapid atrophy of the muscles of one limb may
take place. This has been found to coincide with extension of
degenerative changes in the cord to the anterior gray columns.
Late rigidity is an unfortunately clear symptom. There is little if any

hope of complete recovery of the use of the limb after it has made its
appearance, though it does not prevent walking. After long-continued
contracture the activity of the muscles diminishes, but the increase of
connective tissue and changes in the joints hold the limb in its fixed
position, and the contracture is a more passive one. The electrical
reactions of the muscles and their nerves in cerebral hemiplegia are
not materially altered, but the neuro-muscular irritability may be
somewhat increased for a time by the irritating influence of the
cerebral lesion.
In most cases of flaccid cerebral hemiplegia the electrical irritability is

somewhat decreased, though retaining the normal character with
both currents. Since the muscles and their nerves retain their
connection with the spinal nuclei which are their trophic centres, and
these nuclei are uninjured, their nutrition does not undergo the
changes which affect electric excitability.
When descending degeneration takes place there may be found,

coinciding with increased reflex activity and contracture, increased
sensitiveness to the electric currents. If the degeneration extend to
the anterior columns, as happens in rare cases, the muscles waste
rapidly and exhibit the reactions of anterior poliomyelitis—i.e.
degenerative.
What has just been said applies to the muscles paralyzed by a

central lesion. If, however, with or without a complete hemiplegia, a
limited lesion, as in the pons, affects the nucleus of a nerve, the
peripheral distribution of that nerve is cut off from its nutritive centre,
and it undergoes the usual changes which lead to the reaction of
degeneration, so that, in some unusual forms of paralysis, the two
kinds of reaction, normal and degenerative, may be present in
different sets of muscles.
DIAGNOSIS.—The apoplectiform attack due to hemorrhage or

occlusion of the cerebral arteries is to be distinguished from narcotic
poisoning, specially by opium or alcohol, or by coal gas; epilepsy
with its succeeding coma; uræmia (so called) or cerebral symptoms
connected with renal disease; comatose form of pernicious
intermittent; diabetic coma; sunstroke; hysteria, and various other
forms of intracranial disease, especially meningitis; concussion and
compression of the brain, which often involve hemorrhage; the
apoplectiform attacks of intracranial syphilis and of general paralysis,
as well as the congestive attacks (coup de sang, rush of blood to the
head).
The first of these distinctions is, in a practical point of view, among

the most important and often the most difficult, so that distinguished
authorities insist not only on the difficulty, but impossibility, of making
a positive diagnosis in every case. The physician who is most
familiar with all the different conditions which may cause coma is
least likely to jump at a conclusion.
Persons are constantly being picked up in the street partially or

wholly unconscious, or found alone in a room without history and
away from friends. The physician must then form his opinion from
the present condition, which without a history may be very obscure,
though with one it might present no difficulty. An empty laudanum- or
whiskey-bottle may be of assistance, the former of much, but the
latter of less. The smell of the breath may give a hint, but even if the
smell of alcohol be detected, considering the widespread belief in its
virtues as a panacea, it may be as well the result of amateur
therapeutic attempts as an indication of the cause of the attack.
Neither does it follow that because a man has been or is drunk he
has no organic disease in his brain. Alcohol should simply make us
more careful to examine for possible injuries. In regard to both these
poisons—and in fact in the diagnosis of these conditions generally—
the first thing to be sought for, after assuring one's self that the
patient can breathe and is likely to do so for a few minutes, is some
evidence of hemiplegia. This is not so easy as it might appear at first
sight, since the general muscular relaxation may be so complete as
to cover up local manifestations. The face, however, may show
inequality in its lines or one cheek flap more loosely than the other.
The patient is not likely to undertake voluntary movements at the
request of the physician, but he may make semi-voluntary ones if
annoyed by the examination. The flaccidity of the arms may vary.
Irregularity of the pupils is a piece of evidence to be received with
some caution, as it may be habitual or the result of disease in the
eye. Conjugate deviation of the eyes and head is a form of paralysis,
or sometimes of unilateral spasm, which when present is of great
significance. In opium-poisoning—and to a less extent in alcoholic
coma—the pupils are much contracted, while they are not always so
in apoplexy. Respiration is usually much more rapid in apoplexy than
in opium-poisoning, and this, in the absence of distinct signs of
hemiplegia, would be one of the most important means of distinction.
The pulse is more nearly normal in frequency, while that of opium is
either slow and hard or more often frequent and feeble.
After the time for the initial depression has passed, rapidly-rising
temperature is very strong evidence in favor of apoplexy. If the
patient be only partially unconscious and able to protest against
being handled, to make some short answers, or even be inclined to
be combative, this is not to be taken as evidence of alcohol.
Hemiplegia may then be noticed. This condition of excitement may
be observed in the early stage of an apoplectic attack before it
deepens into coma. Unfortunately, when the lesion is situated in
certain portions of the brain, as in the extremities of either the frontal
or occipital lobes, there may be no paralysis, but then also there is
less likelihood of the extreme symptoms we are supposing to be
present. In the cerebellum, however, the symptoms may be very
severe without hemiplegia, and the diagnosis correspondingly
difficult. Vomiting, not caused by the presence of large quantities of
food or liquor, and persisting after the stomach is once emptied,
would be of some value in this case, but it would often be necessary
to wait for a diagnosis. Cerebellar hemorrhage is, however, a very
rare accident, and cerebellar embolism sufficiently large to cause
apoplectiform symptoms still more so. A limited lesion in the pons
may cause gradually-increasing stupor without distinct paralysis.
Chloroform, especially if swallowed, and chloral might possibly give
rise to difficulties in the way of diagnosis, and would have to be
distinguished on the same general principles as alcohol and opium.
The poisonous gases arising from burning coal, consisting chiefly of

carbonic oxide and dioxide, or illuminating gas, consisting of
carburetted hydrogen with a little carbonic oxide, cause
unconsciousness, coma, and sometimes convulsions and vomiting.
In case of a person found unconscious in bed the possibility of
poisoning by one of these should not be lost sight of, nor, on the
contrary, assumed to be a cause without investigation. A case has
been reported where, after acute poisoning by coal gas, there
occurred, presumably as the result of local anæmia, alternate
paralysis, convulsions, and aphasia.47 The new water-gas process is
said to furnish a product considerably richer in the poisonous
carbonic oxide than that now most in use.
47 Boston Med. and Surg. Journal, Nov. 26, 1885.
The stupor succeeding an epileptic convulsion resembles apoplexy,

and the fact that cerebral hemorrhage may be accompanied by
some convulsions increases the possible similarity, but it requires
only a short time for epilepsy to make itself manifest, either by a
renewal of the convulsions or a rapid recovery without paralysis.
According to Trousseau, however, many attacks of so-called
congestion of the brain are really epilepsy. Puerperal eclampsia
comes under the same head, but when convulsions are violent they
may give rise to actual hemorrhage. Unilateral epileptiform
convulsions are likely to be dependent on organic disease of the
brain, usually not of the kind at present under consideration, but
more frequently of a tumor.
Among the cerebral symptoms connected with renal disease, and

not involving organic change in the brain, may be found
unconsciousness, deep coma, and convulsions. It is obvious that the
presence of a few hyaline casts and a little albumen will not decide
the matter, since these may be present from many causes, and
especially the changes in the circulation accompanying apoplexy.
Neither will the most indubitable evidence of Bright's disease, such
as dropsy, hypertrophy of the heart, rigid arteries, with fatty and waxy
casts in the urine, do so, for, as we have already seen, not only is
there nothing in the presence of nephritis to exclude apoplexy, but
the very form, the interstitial, which, from the supervention of coma
not preceded by other very severe symptoms, most nearly
counterfeits apoplexy, is also the most likely to give rise to actual
cerebral hemorrhage. The extreme and frequent cephalalgia which is
so distressing a symptom in cases where there is no cerebral lesion
may also be the precursors of hemorrhage.
If we have a history, the gradual onset of the symptoms, deepening

unconsciousness without any paralytic or unilateral symptoms,
especially if accompanied by a diminution in the amount of urine or
contained urea or a marked change in the character of the casts,
renders it probable that we are dealing with so-called uræmia alone.
In the absence of history hemiplegia must be the chief dependence,
but it would not be difficult to imagine a case of embolism of the
basilar artery with softening of the pons which would defy a positive
diagnosis.
Pernicious intermittent fever appears in a so-called comatose form,

which, if it were to be accompanied, as in a case related by Bemiss
in the second volume of this work, by paralysis of one arm, might
present difficulties of diagnosis. If it were known that the attack had
been only of short duration, the elevation of temperature would, as in
the case of sunstroke, decide in favor of the fever, but if it had lasted
some hours, this symptom would be of no value, as the temperature
may rise to an equal height in apoplexy.
Diabetic coma is a much less common affection than apoplexy. The

peculiar odor (aceton) of the breath, if present—which is not always
the case—might be diagnostic. The peculiar long and deep
respirations would awaken suspicion which would be confirmed by
an examination of the urine.
Sunstroke, with its sudden onset, complete unconsciousness, and

rapidly rising temperature, may present a very close resemblance for
a while to apoplexy, and in fact has been known as heat apoplexy.
Age, temperature, and surroundings would give strong probabilities
one way or the other, and if the temperature of the patient were at
first below the normal and did not rise for an hour or two, it would
certainly not be sunstroke and would be apoplexy, while if the
temperature were very high a few minutes after the patient had been
observed to cease work or become unconscious, the evidence in
favor of sunstroke would be equally strong.
It might appear that hysteria need hardly enter into our

consideration, and could hardly be mistaken for apoplexy, but most
experienced physicians could relate instances where serious organic
disease has been made light of under the name of hysteria, and
many inexperienced ones could tell of the opposite and safer
mistake. An occasional case of deep coma presents itself where,
although the age and sex of the patient awaken strong suspicion, we
cannot at once be sure that no organic lesion is present; and if, in
addition, the patient should be affected with hemiplegia—a
combination which, although rare, is by no means beyond the limits
attainable by this perplexing disease—an immediate positive
diagnosis would be difficult. Absence of facial paralysis, which might
be made manifest by some irritation like pinching or an attempt to
raise the eyelids, would be of much value under these
circumstances. The hysterical physiognomy might be well enough
marked to be almost conclusive by itself. The urine and feces are not
likely to be passed involuntarily in hysteria, as they are in apoplexy.
Injuries to the head should be carefully looked for in any case with
unknown history. Actual fracture, which perhaps leads to no
depression of bone, may give rise to hemorrhage, probably
meningeal, which will cause the usual symptoms, and a shock which
is not accompanied by fracture may cause considerable laceration of
the brain with consequent hemorrhage. In the latter case, however,
unless the brain be already predisposed by arterial disease, the
laceration and hemorrhage will not be extreme and the symptoms
will be those of concussion. The diagnosis can hardly be said to be
between hemorrhage and concussion, but whether the hemorrhage
be the result of concussion—a question which can hardly be
answered without the history and observation of the further progress.
Cuts and bruises may result from a fall caused by the shock, and
pericranial ecchymoses may result from cerebral hemorrhage
through the vaso-motor system without the intervention of accident.
Rapid meningitis of the vertex, with predominance of the effusion

upon one side, may closely simulate compression from hemorrhage.
At the base, by the time it has become severe enough to cause
unconsciousness, it is likely to have affected the ocular muscles, and
perhaps given rise to other paralyses less regular in their distribution
than the ordinary hemiplegia. Ophthalmoscopic examination would
be of value in these cases if—which is not very likely to happen—
there is no history. The temperature in meningitis is more likely to be
irregular and less rapidly and uniformly rising than in a severe
hemorrhage or occlusion. In many cases emaciation, dry tongue,
and constipation with sunken abdomen will testify to a previous
illness, while after a few hours' observation the progress of the case
will make the diagnosis more clear.
In differentiating cerebral hemorrhage or ordinary embolism from the

apoplectiform attacks met with in syphilitic intracranial disease, it is
rather a question of etiology than of diagnosis in the narrower sense,
since unconsciousness and hemiplegia coming on with syphilis are
often dependent upon a condition of the vessels closely resembling
that which gives rise to the ordinary forms; that is, we are dealing in
either case with an endarteritis which has furnished the basis for the
deposit of a thrombus, and the question is, Of what nature is the
endarteritis? It is obvious that this is only to be answered by a
knowledge of the history, not necessarily of a primary or secondary
lesion, but of previous disease. The syphilitic taint may often be
suspected from the irregularity of the paralysis, the cranial nerves,
for instance—especially the ocular—being much more frequently
affected in syphilitic than in ordinary hemiplegia. After partial
recovery or amendment the characteristics of irregularity and
changeableness will be more strongly marked.
The pathology of hemiplegia and apoplectiform attacks, often
transitory, in the course of general paralysis is not certain, but it is
probable that they are due to sudden congestions of regions of some
extent already in a condition of chronic periencephalitis or to cerebral
œdema. The question of the existence of the previous disease can
only be settled after the return of the patient to consciousness.
Usually, these attacks are not of the severest kind, and are not
necessarily attended with loss of consciousness, which, when it
occurs, is usually not of long duration. An apoplectiform attack
occurring in a young or middle-aged person who has neither cardiac
nor renal disease, rapidly recovered from or changing its character,
should awaken strong suspicions of either general paralysis or
syphilis, or both.
The characteristic of the so-called congestion of the brain, or coup

de sang, is a close resemblance to ordinary apoplexy, but without
hemiplegia and usually with a rapid and complete recovery. A
diagnosis from apoplexy cannot be made at once, except so far as
hemiplegia can be shown to be either distinctly present or absent.
As has already been stated, the doctrine of the dependence of real

apoplectiform attacks upon cerebral congestion alone has been
vigorously combated by distinguished clinicians; and certainly the
diagnosis of congestive (and the same may be stated even more
strongly of so-called serous) apoplexy should never be made until
after the rigorous exclusion of every other possibility.
After the severer apoplectic symptoms have passed off, and in cases
where they have never been present, the diagnosis, so far as most
of the conditions mentioned above is concerned, is divested of many
of its difficulties when we are dealing with cases of well-marked
hemiplegia. The chief points left are the distinctions from the
apoplectiform attacks of general paralysis, cerebral syphilis, and
cerebral tumor, which are to be made as already pointed out.
Slighter and more localized paralyses, such as may occur with

limited lesion of the pons or where a hemorrhage having a large
focus in the substance has escaped under the membranes and
presses on some cranial nerve, would present more difficulties.
Paralyses which are very limited, and at the same time complete, are
not likely to arise from hemorrhage or embolism, though it is possible
that they may do so, but the diagnosis is to be considered rather
under the head of local palsies than of cerebral disease. General
rules cannot be laid down for slighter cases, and each case must be
diagnosticated for itself. In many of them the electrical diagnosis
would be of great value and often decisive.
Hysteria remains, as always, ready to counterfeit anything, but the

following case shows that the error is not always on that side: F. S
——, a young woman, was brought to the hospital, apparently
conscious and understanding what was going on, but unable or
unwilling to speak or to protrude her tongue. There was no history
except that she had probably been in the same condition for thirty-six
hours. There was paralysis of the right side, including the face, and
marked anæsthesia of the same side, quite distinctly limited at the
median line; temperature 97.8°, pulse 60, respiration 20. The next
day she seemed perfectly conscious, but did not speak. The faradic
brush to her face caused loud outcries, and the facial paralysis was
diminished. This condition remained nearly the same, the patient
appearing half conscious, but passing urine in bed. Four days later
there was marked diminution of sensation and motion on the left
(previously sound) side, as well as the right. The note two days later
was, “Shuts and opens her eyes when told, and moves eyeballs in
every direction, but there is apparently no voluntary motion except
slight of the head. Incontinence of urine and feces.” A week later the
temperature rose to 100.4°, pulse 140, and she died. The autopsy
showed red adherent thrombus in the left carotid, extending into the
cerebrals, with extensive anæmic necrosis of the cortex and a part of
the corpus striatum. On the right there was a grayish thrombus and
softening of the cortex, while the great ganglia were not affected.
A woman of thirty-two had repeated attacks of loss of consciousness

and somnolence lasting several hours, but leaving her apparently
well. The case was considered hysteria, but the patient died in a
similar attack. Degeneration of the cerebral arteries and hemorrhage
were found.48
48 Christian, Centralblatt f. d. Med. Wiss., 1873, 864.
Post-paralytic chorea might present difficulties of diagnosis from

hysteria or malingering, though the difficulty is quite as likely to be on
the other side.
The diagnosis, however, is not complete until the lesion is located

with some precision and its nature determined, although it must be
confessed that when we have got as far as this the diagnosis in most
cases is of more interest to the physician than to anybody else,
except to a slight extent for prognosis, so that the event may be
anticipated by a few hours. As to the localization of the lesion, recent
experiments and observations, involving not only lesions of the kind
we are here discussing, but tumors and injuries as well, permit this to
be done with a reasonable degree of certainty. The general article on
Cerebral Localization may be referred to by the reader for the
minuter points, but certain groups of symptoms may be indicated
here which are available to some extent before the complete return
of the patient to consciousness.
In the vast majority of cases the lesion is situated upon the side of
the brain opposite to the paralysis, except in some instances of
cerebellar lesion, while in the peculiar form known as alternate
paralysis due to lesion of the pons it is on the opposite side to the
paralysis of the limbs and on the same side with the facial. It should
be distinctly stated, however, that there are exceptions which are
inexplicable on the present basis of cerebral anatomy. It is well
known that only a part of the motor tracts cross to the other side of
the cord at the decussation, and also that the proportion between the
fibres which do and those which do not cross is a variable one. It has
been suggested, in some cases of the kind mentioned, that all the
motor fibres, instead of only a minority, as is usual, pass down on the
same side of the cord as their origin. This has not been
demonstrated. The number of such cases are so small that it need
not be taken into account in diagnosis, and if the practitioner should

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Domestic law in international

investment arbitration 1st Edition

Attribution in International Law and Arbitration 1st

Applicable law in investor state arbitration the

Treaty shopping in international investment law First

International Investment Law and Competition Law Katia

Stabilization Clauses in International Investment Law A

Yearbook on international investment law & policy

Arbitration Under International Investment Agreements:

Women s Rights and Religious Law Domestic and

INTERNATIONAL ECONOMIC LAW SERIES

recent titles in the series

Series Editor’s Preface

The question of domestic law in international investment arbitration as addressed

viii Series Editor’s Preface

This book is a revised version of my DPhil thesis defended at the University of

3 Domestic Law and Expropriation 41

4 Domestic Law and Remedies 69

xii Table of Contents

6 Applying the Framework—​Preliminaries 139

Table of Contents xiii

6.3 Estoppel as a Means to Avoid Consideration of Domestic Law 155

7 Applying the Framework—​In Practice 163

xvi Table of Cases

Carbonara and Ventura v Italy App No 24638/​94 (ECHR, 30 May 2000)�������������������������������������153

Eastern Sugar BV (Netherlands) v Czech Republic (SCC No 008/​2004), Partial Award,

Table of Cases xvii

xviii Table of Cases

Iatridis v Greece App No 31107/​96 (ECHR, 25 March 1999)���������������������������������������������������������65

James v UK App No 8793/​79 (ECHR, 21 February 1986)�����������������������������������������������������������153

Kemal Uzan v Turkey App No 18240/​03 (ECHR, 29 March 2011)�����������������������������������������������130

Table of Cases xix

M Meerapfel Söhne AG v Central African Republic (ICSID Case No ARB/​07/​10), Arbitral

Nations Energy Inc v Panama (ICSID Case No ARB/​06/​19), Award,

Occidental Petroleum Corporation v Ecuador (ICSID Case No ARB/​06/​11), Award,

Parkerings-​Compagniet AS v Lithuania (ICSID Case No ARB/​05/​8), Award,

Railroad Development Corporation v Guatemala (ICSID Case No ARB/​07/​23), Second

Table of Cases xxi

Tecnicas Medioambientales Tecmed SA v Mexico (ICSID Case No ARB(AF)/​00/​2), Award,

Vannessa Ventures Ltd v Venezuela (ICSID Case No ARB(AF)/​04/​6), Award,

xxii Table of Cases

Walter Bau AG (in liquidation) v Thailand (UNCITRAL), Award, 1 July 2009�����������������������������191

X v Austria App No 19010/​07 (ECHR, Judgment of 19 February 2013)������������������������������� 111, 115

and equitable treatment’ commonly found in investment treaties.9 The definition

1.1 Legitimacy and the ‘Backlash’

minimum standard of treatment of aliens. Capital-​exporting countries, keen to

19 See generally Newcombe and Paradell (n 8) ch. 1.

On the receptive side we have the inability to understand language

It should, of course, be understood that the muscles are not

The act of speaking, according to Kussmaul,38 consists in three

Paraphasia is the use of the wrong words, or of phrases which carry

Word-blindness is more common than word-deafness, and is a

Gouty aphasia has been described in a man aged thirty-seven who

Aphasia may be entirely unconnected with motor paralysis, and is

By far the most common situation of the softening or hemorrhage

In a respectable minority of cases aphasia may be associated with

A lesion in the pons may give rise to aphasia or something closely

A case of congenital aphasia with right hemiplegia has been

Post-paralytic chorea is an affection the nature of which is indicated

The temperature in the early days of both hemorrhage and embolism

The coincidence of rise of temperature with vascular relaxation has

If there is any tendency to œdema, as when nephritis is complicated

The most significant change which occurs in the course of a

6 Applying the Framework—Preliminaries 139

7 Applying the Framework—In Practice 163

Carbonara and Ventura v Italy App No 24638/94 (ECHR, 30 May 2000)��153

Eastern Sugar BV (Netherlands) v Czech Republic (SCC No 008/2004), Partial Award,

Iatridis v Greece App No 31107/96 (ECHR, 25 March 1999)��65

James v UK App No 8793/79 (ECHR, 21 February 1986)��153

Kemal Uzan v Turkey App No 18240/03 (ECHR, 29 March 2011)��130

M Meerapfel Söhne AG v Central African Republic (ICSID Case No ARB/07/10), Arbitral

Nations Energy Inc v Panama (ICSID Case No ARB/06/19), Award,

Occidental Petroleum Corporation v Ecuador (ICSID Case No ARB/06/11), Award,

Parkerings-Compagniet AS v Lithuania (ICSID Case No ARB/05/8), Award,

Railroad Development Corporation v Guatemala (ICSID Case No ARB/07/23), Second

Tecnicas Medioambientales Tecmed SA v Mexico (ICSID Case No ARB(AF)/00/2), Award,

Vannessa Ventures Ltd v Venezuela (ICSID Case No ARB(AF)/04/6), Award,

Walter Bau AG (in liquidation) v Thailand (UNCITRAL), Award, 1 July 2009��191

X v Austria App No 19010/07 (ECHR, Judgment of 19 February 2013)�� 111, 115

minimum standard of treatment of aliens. Capital-exporting countries, keen to