“The Meaning of ‘and’ in Article 42(1), Second Sentence, of the Washington Convention: The Role of International Law in the ICSID Choice of Law Process”, 18 ICSID Review 375 (2003)

Choice of law under Article 42(1) of the Washington Convention is no doubt one of the most important questions in ICSID arbitration. However, until recently, the debate on this issue had somewhat fossilized into the general understanding that ICSID tribunals, which are bound by the law chosen by the parties for the resolution of their dispute, should, in the absence of a choice, apply the law of the host State and the rules of international law which either fill the perceived gaps in the law of the host State or prevail over the applicable rules of domestic law which are inconsistent with the requirements of international law.