Jurisdiction — Dispute arising directly out of an investment — ICSID Convention, Article 25(1) — Whether measures affect investment directly even if not specifically aimed at investment

Foreign investment — Definition of investment — Investment through acquisition of shares — Whether licences and guarantees held by consortium an investment of shareholder — Whether consortium in which shareholder has shares an investment — Full control of shareholding — Separate legal personalities and rights and obligations of investor and consortium — Whether BIT protection limited to shareholding — Whether claims invoked on behalf of consortium

Foreign investment — Definition of investment — Licences and guarantees held by an entity other than investor — Additional circumstances in considering licences and guarantees as investment

Jurisdiction — Contract claims as opposed to treaty claims — Recourse to dispute settlement a matter of investor’s right — Whether existence of contractual remedies limit such right — Effect of exclusive choice of forum clause in contract — Whether claims constitute breach of contract

Jurisdiction — Most-favoured-nation (MFN) clause — Requirement that claims be first submitted to domestic courts — Whether MFN clause applies to dispute settlement — Position of a party on the scope of MFN clause expressed in litigation and “subsequent practice” within the meaning of the Vienna Convention on the Law of Treaties

Jurisdiction — Damages, demonstration of at jurisdictional phase

Interpretation — Vienna Convention on the Law of Treaties, Article 31.3(b) — Whether pleading a certain interpretation of a treaty provision constitutes “subsequent practice”

Jurisdiction — Dispute arising directly out of an investment — ICSID Convention, Article 25(1) — Relationship between State’s “general” measures and investment — Whether host State’s “general” measures fall within Article 25(1) of the ICSID Convention — Whether “general” measures affect investment directly if not specifically aimed at investment

Jurisdiction — Contract claims as opposed to treaty claims — Legal nature of dispute — ICSID Convention, Article 25(1) — Whether ICSID tribunal has jurisdiction over breach of contractual obligations — Effect of umbrella clause

Jurisdiction — Taxation matters, limitation on jurisdiction — Whether claimant must demonstrate prima facie only that claims relate to taxation matters

Jurisdiction — Forum selection — Submission to local jurisdiction — “Fork-in-the-road” clause — Estoppel — Whether claimant estopped from bringing claim before ICSID tribunal if proceedings initiated in host State’s courts

Jurisdiction — Damages, demonstration of at jurisdictional phase — Whether dispute “merely hypothetical” if no damages shown

Jurisdiction — Standing — Whether jus standi addressed at jurisdiction or merits phase

Jurisdiction — Jurisdiction ratione temporis — Investments made before and after entry into force of BIT

Jurisdiction — Claimant’s identity and ownership, determination of — Whether evidence to determine identity and ownership sufficient

Jurisdiction — Competence of tribunal — Tribunal’s power and obligation to determine its own competence — ICSID Convention, Article 41 — Tribunal’s implicit right to analyse relevant factual and legal matters

Jurisdiction — Jurisdiction ratione voluntatis — ICSID Convention, Article 25(1) — Consent of the parties — Tribunal’s obligation to analyse scope and extent of consent — Whether host State’s consent limited to investments made “in accordance with the law”

Jurisdiction — Competence of tribunal — Tribunal’s competence to determine legality of investment — Whether domestic court decisions on legality of investment constitute res judicata

Jurisdiction — Fraudulent conduct by investor — Whether fraudulent conduct deprives of the right to BIT claim — Whether fraud to be addressed in the jurisdiction or merits stage

Jurisdiction — Illegality of an investment as a factor in determining jurisdiction — Whether ICSID jurisdiction follows from contract for services — Whether ICSID jurisdiction follows from the BIT itself

Foreign investment — Legality of investment — Laws and principles applicable to an investment — Whether investment made in violation of the principle of good faith — Whether an investor can benefit “from his own fraud” — Whether granting protection to an illegal investment contrary to international public policy — Whether BIT protection of illegal investment would favour unlawful enrichment

Costs — Allocation of costs between parties — Effect of a party’s conduct on apportionment of costs — Conduct “beyond reproach”

Expropriation — Burden of proof that expropriation occurred — Whether exercise by government of regulatory powers constitutes expropriation — Whether serious breach of contract constitutes expropriation — Considerations in determining expropriation — Substantial erosion of value of investment

Jurisdiction — Most-favoured-nation (MFN) clause — Whether MFN clause extends jurisdiction to claims not listed in dispute settlement clause — Intention of parties to BIT

Jurisdiction — Remedies if no jurisdiction of arbitral tribunal — Diplomatic protection — Domestic remedies

Costs — Allocation of costs between parties — Effect of a party’s conduct on apportionment of costs — Initiation of proceedings without examination of jurisdictional basis

Admissibility — Investment procured through bribe — Whether bribe contrary to international public policy — Concept of international public policy — International consensus as to universal standards and accepted norms of conduct — Whether bribe contrary to domestic laws and public policy — ICSID Convention, Article 52 — Whether public policy can be a ground for annulment — Whether payment of bribe is a separate transaction from investment

Admissibility — Contract, avoidance of — Unequivocal and timely avoidance of contract

State responsibility — Attribution — Whether knowledge of bribe by state official attributable to the State

Applicable law — Conflicting clauses in investment agreement relating to applicable law — ICSID Convention, Article 42(1)

Jurisdiction — Bribe, effect on arbitration clause in an investment contract — Lack of evidence that bribe was to procure specific arbitration clause

Costs — Allocation of costs between parties — Why successful party should not recover costs — ICSID Arbitration Rules, Article 28(1)

Evidence — Production of evidence — Request for evidence from another ICSID dispute — ICSID Convention, Article 43 — IBA Rules on the Taking of Evidence in International Commercial Arbitration, Article 3

Jurisdiction — Jurisdiction ratione temporis — Distinction between “divergences” and “disputes” — Criteria for “crystallization” of disputes — Whether dispute crystallized after entry into force of the BIT — Whether modification of contract affects crystallization of dispute

Jurisdiction — Jurisdiction ratione materiae — ICSID Convention, Article 25(1) — Definition of investment — Conditions for a contract to be an investment

Jurisdiction — Jurisdiction ratione personae — ICSID tribunal’s duty to resolve jurisdictional issue — Attribution of acts of a state-owned company to the State — ILC Articles on State Responsibility, Article 5 — Whether state-owned company exercised governmental authority

Jurisdiction — Objections to jurisdiction raised in merits phase — ICSID Arbitration Rules, Rule 41(1) — Whether delay in jurisdictional objection constitutes waiver — ICSID Convention, Article 25(1) — Requirement that dispute arises out of an investment — Whether jurisdiction if investment ceases to exist

Admissibility — Res judicata, conditions of — Whether domestic arbitral award has res judicata effect in ICSID proceedings — Effect on ICSID proceedings of award’s recognition under the New York Convention on the Recognition and Enforcement of Foreign Awards

State responsibility — Suspicious conduct of authorities — Whether inappropriate conduct of authorities sufficient to establish breach of BIT obligations — Contractual nature of allocation of responsibility for actions or omissions

Jurisdiction — Exhaustion of local remedies — Whether exhaustion of local remedies a pre-condition to BIT arbitration

Foreign investment — Fair and equitable treatment — Whether recourse to domestic arbitration of investor’s partner a breach of the BIT — Investor’s freedom to appoint arbitrator — Whether enforcement of domestic arbitration award a breach of the BIT

Foreign investment — Fair and equitable treatment — Relations between parties to a contract — Whether less favourable treatment of investor by contractual partner a breach of the BIT — Whether control by State sufficient to attribute conduct of state-owned company to State — Whether conduct being a coordinated plan by State against investor — Contractual rights and treaty rights

Expropriation — Termination of contract as expropriation — Involvement of state authorities in plan aimed at termination of contract — Whether investor’s failure to challenge authorities’ conduct in domestic courts disqualified BIT expropriation claim

Costs — Allocation of costs between parties — ICSID Convention, Article 61(2) — Rule 28 of the ICSID Arbitration Rules — Specific criteria for allocation of costs

Annulment — Function of annulment committee — ICSID Convention, Article 52 — No reconsideration of findings of fact

Annulment — Serious departure from a fundamental rule of procedure — ICSID Arbitration Rules, Rule 34(1) — Evaluation of evidence presented by the parties — Opportunity for parties to present their case — Tribunal’s right to reach its own conclusions as to interpretation and weight of evidence

Annulment — Failure to state reasons — ICSID Convention, Article 52(1)(e) — No requirement to discuss every argument raised by parties

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1)(b) — Scope of ICSID tribunal’s powers based on agreement of parties — Failure to decide a question entrusted to the tribunal as manifest excess of powers — Intention of States parties to BIT

Annulment — Exhaustion of local remedies — Whether exhaustion of local remedies pre-condition to BIT arbitration — Reliance on prior ICSID award where facts different — Effects of requirement of exhaustion of local remedies on ICSID arbitration

Annulment — Annulment of part of the award — Effect on the award

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1)(b) — Distinction between breach of treaty and breach of contract — Reliance by ICSID tribunal on domestic arbitration to analyse alleged breach of treaty

Jurisdiction — ICSID Convention, Article 25(1) — Scope of “legal dispute” — Relationship between ICSID and ICC arbitration — Admissibility of a claim concerning ICC award — Claim not abuse of process — ICSID Tribunal not a controlling body of ICC arbitration — Whether immunity in favour of domestic judiciary

State responsibility — Whether courts qualify as State organs — ILC Articles on State Responsibility — Attribution to be examined in merits phase

Foreign investment — Whether ICC award an investment — Whether residual contractual rights crystallized by ICC award an investment — ICSID Convention, Article 25(1) — Scope of an investment — Conclusion of contract as an investment — “Salini” test — Duration of contract not an applicable criterion — Irrelevance of origin of funds, unless expressly limited — Use of local funds for investment — Advance payment and assessment of commercial risk

Expropriation — Expropriation through decisions of national courts or tribunals — Court decisions as “measures having similar effects” to direct expropriation — Immaterial rights capable of expropriation — Contractual rights to arbitrate — Measures depriving of the benefit of ICC award — Governmental nature of an expropriation act — “Sole effects” doctrine — Requirement of “illegality” — Assumption of jurisdiction by local courts over arbitration not illegal per se — Illegality of revocation of arbitrators — Abuse of rights by courts

Jurisdiction — Exhaustion of local remedies — ICSID Convention, Article 26 — Exhaustion of remedies a substantive requirement — No applicability in expropriation law — Obligation to exhaust effective remedies, not resort to “improbable” remedies

Provisional measures — ICSID Convention, Article 47 — Discretion of tribunal — Requirements of necessity and urgency — Consideration of the parties’ divergent interests — Measures to prevent the increase of harm suffered by party

Applicable law — Whether tribunal bound by previous decisions — Duty to adopt solutions decided in previous cases — Legitimate expectations of parties — Harmonious development of international investment law

Jurisdiction — NAFTA, Article 1116 — Claim by an investor as a party on its own behalf — NAFTA, Article 1117 — Claim by an investor on behalf of an enterprise — Limitation period for claims — Effect of continuing conduct on limitation period — Establishment of damages not precursor to submitting a claim

Jurisdiction — NAFTA, Articles 1116 and Article 1117 as different grounds for claims — Different grounds for claim and implications for substance of claims or right of parties — Whether investor may claim for losses incurred by subsidiary

Jurisdiction — Damages, demonstration of at jurisdictional phase — Whether separation of causation and damages appropriate — Jurisdiction established where prima facie case of damages shown

State responsibility — Attribution — NAFTA, Articles 1102 and 1105 — Parties to NAFTA — Distinction between the State and monopolies and enterprises — ILC Articles on State Responsibility — Whether Article 4 of ILC Articles applies to NAFTA obligations — NAFTA, Chapters 11 and 15 — ILC Articles on State Responsibility, Article 55

State responsibility — Attribution — ILC Articles on State Responsibility — Whether Article 5 of ILC Articles applied to actions of State monopoly — Whether NAFTA a special regime of international law — “Residual character” of Article 5 of ILC Draft Articles

State responsibility — Attribution — NAFTA, Articles 1102 and 1105 — Exercise of governmental authority by monopoly or enterprise — Whether commercial decisions have governmental character

NAFTA — National treatment — NAFTA, Article 1102 — Meaning of “like circumstances” — Postal services as distinct from courier services — Effect of competitive relationship between investors on establishing “like circumstances” — Effect of international regulations on establishing “like circumstances” — Kyoto Convention to Standardize Customs Procedures and Policies

NAFTA — NAFTA obligations — NAFTA, Articles 1502(3)(a) and 1503(2) — Party’s obligation to ensure that State enterprises not act inconsistently with its NAFTA obligations — Scope of regulatory, administrative or other governmental authority by State enterprises and monopolies — Whether actions of State enterprise constitute commercial decisions or decisions with governmental character

NAFTA — National treatment, exceptions to — NAFTA, Article 1108(7) — Procurement exception — Meaning of “procurement” — NAFTA, Article 2106 and Annex 2106 — Cultural heritage industries exception — NAFTA, Article 1108 — “Subsidies” exception — Whether payments to entity constitute subsidy

Jurisdiction — Specificity of claims — Failure to provide sufficient specification

Annulment — Stay of enforcement — ICSID Convention, Article 52(1) — Provision of security — Discretion of ad hoc committee to decide on security — Burden on claimant to show security required — Annulment proceeding not an exceptional circumstance justifying security

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1)(b) — Meaning of “manifestly” — “Test” of manifest excess of powers — Whether tribunal had manifestly acted without jurisdiction — ICSID Convention, Article 41(2) — Tribunal as judge of its own competence — Whether manifest lack of jurisdiction if decision under Article 41(2) incorrect

Annulment — Function of annulment committee — No appeal or de novo review

Foreign investment — Standing — Investment through company — Controlling shareholding — When investor not legal owner of assets constituting investment — When investor not party to contract giving rise to rights constituting an investment — Investor’s financial and commercial interest in the investment — Separate legal personalities and rights and obligations of shareholders and company — Right of shareholder to pursue investment treaty claim — ICSID Convention, Article 25(2)(b) — Multiple proceedings — ICSID proceedings of shareholders in light of proceedings brought by company in national courts — Prevention of double recovery

Applicable law — Annulment — Whether tribunal disregarded applicable law — ICSID Convention, Article 42 — ICSID Convention, Article 52(1)(b) — BIT governed by international law — ICSID Convention, BIT and international law as applicable law — Municipal law helpful in determining breach of BIT — General principles of international law — Applicable law in determination of “fair and equitable” standard

Annulment — Failure to state reasons — ICSID Convention, Article 52(1)(e) — Whether the award contained contradictory statements — Tribunal’s refusal to consider an issue — Whether serious departure from fundamental rule of procedure

Annulment — Denial of fundamental evidence — ICSID Convention, Article 43(a) — ICSID Arbitration Rule 34(2) — Tribunal’s discretionary power to call upon a party to produce documents — No right of party to obtain evidence from opposing party — Inequality of treatment of parties — Application of different standards in admission of evidence

Procedure — Composition of tribunal — Disqualification of arbitrator — ICSID Convention, Article 52(1)(a) — ICSID Convention, Articles 57 and 58 — No right to de novo review of challenge of arbitrator — Waiver of rights to raise objections — Estoppel from raising objections

Annulment — Damages — ICSID Convention, Article 52(1)(a) — Tribunal’s discretion to apply “fair market value” standard

Annulment — Costs of annulment proceedings — Administrative and Financial Regulations, Regulations 14(3)(d) and 14(3)(e) — Applicant to bear costs of entirely unsuccessful application

Admissibility — Energy Charter Treaty, Article 17(1) — Conditions necessary to invoke Article 17(1) — Ownership or control by a national of a Contracting Party

Admissibility — Ownership, misrepresentation of — Whether alleged misrepresentation is a question of jurisdiction or merits

Foreign investment — Misrepresentation as to identity of investors — Whether investment contrary to domestic law and international law — Obligations of investor to provide host State with information concerning the investor and investment — Whether investment made in violation of principle of good faith — Whether illegal investments protected by law

Energy Charter Treaty — Energy Charter Treaty, Article 26(6) — Applicable rules and principles of international law — Principle that nobody can benefit from his own fraud — Whether enforcement of an illegally obtained contract contrary to international public policy

Energy Charter Treaty — Scope of protection — Whether protection extends to investments made illegally — Whether protection extends to changes in the host State’s laws — Investor’s awareness of the state of the host State’s laws — Risks of investment — Energy Charter Treaty, Article 21 — Taxation excluded from scope of the Treaty

Energy Charter Treaty — Standards relating to investments — Energy Charter Treaty, Article 10(1) — Whether Article 10(1) applies to all stages of investment — Liability for past environmental damages — Fair and equitable treatment — Full protection and security — Whether failure to provide aid for environmental clean-up constitutes discrimination

Foreign investment — Actions of state-owned bank with respect to foreign investor — Whether actions taken on a commercially reasonable basis

Costs — Allocation of costs between parties — ICSID Convention, Article 61 — Tribunal’s discretion to award costs — Effect of a party’s conduct on apportionment of costs — Fraudulent conduct by a party