This chapter argues that the systemic integration of customary international law in the interpretation of investment treaties should equip vulnerable polities with principled arguments for why a high degree of deference is warranted in their adoption of regulatory measures to address the health, economic and social dimensions of chronic crises. The chapter reviews the recent demand for governments to protect their right to regulate by imposing a moratorium on investment treaty claims. This critical discourse has overlooked the deeper roots of the State’s presumptive right to regulate without compensation, an expression of its territorial sovereignty under customary international law. Evident across landmark decisions such as the Oscar Chinn Case, the Iron Rhine Arbitration and Philip Morris v. Uruguay, the regulatory dimension of territorial sovereignty both preceded and endured the mid-century debate over the standard of compensation for nationalisation and the subsequent rise of investment arbitration. In contemporary practice, the customary rule that there is no State responsibility for reasonable regulation may be integrated through arbitral practice to ensure each claimant bears the burden to prove that regulatory measures were unreasonable, discriminatory, or adopted in bad faith.

This chapter traces the historical derivation of private and public nuisance law, extending back to 12th century England, where a public nuisance was considered to be an offense agains the Crown. As such, nuisance was considered to be a criminal act, punishable by the sheriff purusant to police powers. Over time public nuisance expanded to embrace activities such as lotteries, unlicensed plays, disorderly houses of prostitution, noxious odors, higway interferences, and many other offenses. In the 16th century a crime of public nuisance gave rise to a private tort if the plaintiff could show he sustained injuries that were different in kind from those suffered by the general public. This special injury requirement carried over into modern public nuisance jurisprudence. Over time nuisance law subsumed elements of criminal law, tort law, and property law. Modern American public nuisance law developed with the American Law Institutes Restatement (Second) of Torts, in 1979. The ALI Restatement (Third) has consierably limited the modern concept of public nuisance law, excluding its applicability to product cases.

This chapter looks at the guarantees against expropriation found in most investment treaties. It discusses the expansive concept of indirect expropriation under which an investor retains title to its property yet loses much of its practical value. The chapter also considers the situations under which an expropriation of an investor’s property will be viewed as illegal.

Chapter 8 concludes the analysis of the most important substantive investment treaty clauses by examining the fair and equitable treatment standard. It argues that armed conflict does not put into question certain guarantees of fair decision-making and adjudication, whereas it proposes a balanced relativisation of the protection of investor expectations in the context of armed conflict. The determination of whether treatment is fair and equitable can only be made in the light of the individual circumstances of conflict. When balancing the interests of investors in a stable regulatory framework against the state’s regulatory interests, the urgency and severity of these public interests in armed conflict should be accorded particular weight. Under the proposed reading, the fair and equitable treatment standard is flexible enough to consider the circumstances of an armed conflict in a balanced and nuanced way. Well aware of existing controversies and opposing lines of jurisprudence, the chapter suggests ways to embrace the standard’s flexible nature and counteract tendencies in arbitral practice that arguably overemphasise investor interests.

How did the Gestapo enforce laws governing criticism? Recent historiography highlights denunciation driven policing as well as the overrepresentation of Communists and Jews in cases taken to trial. A system of selective enforcement is well-established fact, but the dynamics remain unclear. Enemies of the People randomly samples two categories of “criminal opinion” to capture the changing decision-making processes behind routine investigation, interrogation, and enforcement practices. Five arguments take shape. First, a conscious policy of selective enforcement based on political reliability as defined by standing within the Nazi people’s community. Second, the system punished subversive motive rather than actions. Third, political police viewed targeted minorities as subversives, privileged minorities as supporters, and carefully investigated “politically colourless” Germans. Fourth, from 1935 to 1944, the Gestapo behaved as an ordinary detective service when investigating individual Germans. Fifth, selective enforcement involved state prosecutors and the Party through five configurations. The violence of revolution and collapse were bookends on a decade of much cooler suppression.

This chapter provides an overview of the Gestapo and political policing in Government District Düsseldorf. The origins of ministerial independence are traced through laws, precedents, and power struggles that recast political police as a “special authority” removed from administrative oversight. The origins of preventative police justice outline how Himmler carved out a new mandate of prevention without encroaching on punishment through the courts under the cover of policy and law regulating arbitrary “protective custody” in concentration camps. An overview of politico-economic geography then underlines the importance attributed to suppressing dissent in this strategically vital district with historically low support for Nazism. Generational biography of regional personnel further details how this conditioned a shared institutional culture defined by the defeat of 1918 and communist uprisings in the Rhineland. Finally, tectonic shifts in case load identify inflection points in 1935 as the Gestapo pursued organized resistance into society at large, and in 1943 when case load plummeted as attention shifted to suppressing a slave revolt.

In this chapter, the method of ‘frame-determination’ for IIA expropriation clauses is applied and three limits of the actus reus condition of typical IIA expropriation clauses are identified. (1) On the macro-structural level, concerning the interaction of IIA clauses with the rest of international law, facile references to customary international law are shown to be problematic: ‘’ in IIAs does not refer to a customary norm of certain validity and great specificity. (2) On the micro-structural level, the necessity of treating direct and indirect expropriation as fully equivalent is structurally inherent in typical IIAs. (3) All legality conditions are equal and cannot be doubled in the actus reus of indirect expropriation. The structure of typical IIA clauses does not support the majority of arguments based on ‘police powers’ or on a ‘right to regulate’.

This chapter deconstructs the main argument of orthodox doctrinal scholarship on regulatory expropriation. It argues that the strong impetus of orthodox scholarship to solve problems leads both those favouring strong investor protection and those arguing for a wide state freedom to regulate to see the problem in virtually the same terms and to develop the same solution. The problem identified is that neither of the two extremes is sustainable; the solution is that a balance has to be struck. Yet such a view is ideological, not legal, because it cannot contemplate and must deny a priori the possibility that IIA expropriation clauses are skewed in one direction or that the law does not provide for a balanced, proportional solution. Doctrinal scholarship, however, must analyse the law as it is, not as we may wish it to be.

This chapter surveys the legal history of the term "due process of law," from Magna Carta, the Statutes of Edward III, and the Petition of Right to the writings of William Blackstone and the opinions of antebellum state-level court cases. It argues that there was no concept of "substantive due process" in the antebellum period. It refutes arguments that due process prohibited class legislation, limited states to reasonable exercises of the police powers, or underwent a change in meaning as a result of abolitionist constitutional thinkers.

This chapter first identifies five entry points for science in environmental investment disputes. It continues with analysing framing techniques of both litigants and arbitrators that aim to strategically manage the science-intensity of the legal inquiry. The chapter discusses varied scientific fact-finding methods of investment tribunals. Despite that party-submitted evidence dominates investment arbitration, on rare occasions panels appoint independent experts. As to causal inquiry, the chapter discusses that open causal assessments remain a rarity in arbitral practice, though science-based causal nexus increasingly gains relevance in environmental disputes. As to the standard of review, arbitral tribunals are generally deferential towards the scientific claims of host states. Yet they design different standards to review the scientific basis of host states' risk regulatory measures, for instance, some focus on the transparency of the regulatory process, while others rely on regulatory trends of other states. This chapter concludes with analysing and comparing the various standards of review applied in science-intensive investment arbitral proceedings.

Neither Contracting Party shall take any measures depriving, directly or indirectly, investors of the other Contracting Party of their investments unless the following conditions are complied with: (a) the measures are taken in the public interest and under due process of law; (b) the measures are not discriminatory or contrary to any undertaking which the former Contracting Party may have given; (c) the measures are accompanied by provision for the payment of just compensation. Such compensation shall represent the real value of the investments affected and shall, in order to be effective for the claimants, be paid and made transferable, without undue delay, to the country designated by the claimants concerned in any freely convertible currency accepted by the claimants.

A panoptic overview of current governing practices evidences an expansive role of private regulation in a significant range of crucial public policy issues. Whether at the domestic, regional or global levels, such a phenomenon has increasingly become perceived as a conundrum, if not an overall crisis, for modern paradigms of legal and political authority. Building upon the array of case studies that the phenomenon has already elicited, this paper advances four interrelated arguments. First, descriptively, it contends that the administrative state has experienced a large-scale transformation due to the proliferation of a varied, multifaceted and fast evolving range of private regulatory practices. Second, methodologically, after mapping the way these private regulatory practices have been conceptualised in post-national legal theories, it conveys the importance of moving beyond the state of the art by adopting a phenomenological approach to contemporary legal orderings. Third, drawing upon comparative analysis of competition law, it distinguishes two broad models that have emerged to address the private regulation phenomenon: (i) the private ordering model, predominant in the US; and (ii) the private police powers model, predominant in the EU, which, I claim, could be productively understood from a doctrinal perspective as an emergent private administrative law. Finally, at a normative level, I conclude positioning such a private administrative law model as a distinctive conceptual framework to reflect upon the place, role and the very significance of law within a landscape of contemporary political economies characterised by an expanding topography of private regulators.

This chapter provides a general picture of the criminal justice system in Hong Kong. It highlights the roles and powers of key criminal justice agencies including the Hong Kong Police Force (HKPF), the Independent Commission Against Corruption (ICAC) and the prosecution. It includes discussion of police powers and prosecutorial decision-making. This chapter also goes through the criminal procedure, drawing attention to key decision points such as bail, court venue, the plea and the standard of proof. It concludes by looking at the various sentencing options at the court’s disposal.