Czech Republic. The tribunal exemplifies certain situations in which an arbitral tribunal needs to factually analyse domestic laws to see whether the international obligation in question has been violated: This may for instance be the case of a miscarriage or denial of justice committed in patent disregard of the investor’s procedural or substantive rights under domestic law, or of an intolerable abuse in the administration of a public contract between the investor and a State entity governed by municipal law, or of any other behaviour of State organs amounting to an intolerable impropriety in the way they apply internal law provisions against a foreign investor. In all above cases, reference to internal law is necessary to establish whether the host State is also liable for a violation of an international obligation under the applicable treaty or general international law.111 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ also provides us with another tangible example of domestic law being applied as ‘fact’ and/or ‘evidence’ in considering a matter of merits in an investment arbitration, this time from the perspective of a host state’s defence: For instance, where the host state defends its alleged expropriatory conduct as ‘non-discriminatory’ and refers to other legislative enactments that treat different investors in the same way, these enactments are ‘facts’ for the investment treaty tribunal’s judgment as to whether the test for expropriation has been satisfied in the particular instance.112
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