Jurisdiction — Applicable law — ICSID Convention, Article 42(1) — ICSID Convention, Article 25 — Whether the choice of applicable law on the merits applied also to the jurisdictional phase

Jurisdiction — Nationality — ICSID Convention, Article 25(2)(b) — Whether nationality requirements were cumulative or alternative — Whether an investor not exercising control may bring a claim — Whether the interests of foreign investors may be combined

Jurisdiction — Dispute — ICSID Convention, Article 25(1) — Whether the dispute was of a legal nature — Whether dispute arose directly from an investment

Foreign investor — Investment — Minority or indirect shareholding — Whether a minority shareholding qualified as an investment

Jurisdiction — Negotiation — Whether an ongoing renegotiation of licences with the State was a ground to decline jurisdiction

Jurisdiction — Forum selection — Submission to local jurisdiction — Whether contract-related disputes may be submitted to ICSID tribunal

Expropriation — Direct expropriation — Whether transfer of property rights to the State was an essential requirement of direct expropriation

Expropriation — Indirect expropriation — Whether there was substantial deprivation of property rights

Fair and equitable treatment — Legitimate expectation — Whether State measures substantially changed the legal and business framework under which the investment was made

Umbrella clause — Whether breach arose from conduct of an ordinary contract party or involved sovereign State function — Whether the obligation was related to a specific investment agreement

Arbitrary or discriminatory measures — Economic crisis — Whether measures adopted were arbitrary or discriminated against the investor

Full protection and security — Legal protection — Whether the standard of full protection and security expanded beyond physical protection

Defence — Emergency measures — Municipal law — Whether national emergency measures were legally justified under municipal law

Defence — Necessity — ILC Articles on State Responsibility, Article 25 — Customary international law — Whether measures were adopted to safeguard an essential interest — Whether there existed a grave and imminent peril — Whether the measures adopted were the only way to offset the economic crisis — Whether the State contributed to the situation giving rise to necessity

Defence — Exclusions and reservations — Essential security interests — Interpretation — Whether an economic emergency qualified as an essential security interest — Whether the provision was self-judging — Whether the provision should be interpreted in light of customary international law

Defence — Necessity — ILC Articles on State Responsibility, Article 27 — Customary international law — Temporality — Whether the state of necessity was still justified — Whether compensation might be owed for measures adopted during the state of necessity

Remedies — Damages — Whether crisis had incidence on the amount of compensation — Whether a renegotiated agreement had incidence on amount of compensation

Remedies — Interest — Whether post-award interest must be expressly requested in the petition for relief

Procedure — Stay of enforcement — ICSID Convention, Article 52(4) — Whether there was a presumption in favour of granting a stay — Whether an annulment committee was empowered to impose conditions on the granting of stay

Procedure — Stay of enforcement — ICSID Convention, Article 53 — ICSID Convention, Article 54 — Whether the creditor must have recourse to domestic enforcement procedure — Whether circumstances and history of non-compliance called for assurances

Procedure — Stay of enforcement — Whether the State demonstrated economic hardship — Whether escrow eliminated risk of non-recoupment

Procedure — Termination of stay — Whether the risk of third-party creditors seizing escrow funds justified non-compliance with conditions on the granting of stay

Annulment — Manifest excess of powers — Failure to state reasons — ICSID Convention, Article 52(1) — Jurisdiction — Investment — Minority or indirect shareholding — Whether the tribunal’s conclusions on standing constituted grounds for annulment

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1) — Defence — Exclusions and reservations — Whether equating a treaty provision with the standard under customary international law constituted a failure to apply the applicable law — Whether excess of power was manifest

Annulment — Costs — Whether the rule that costs follow the event was in line with equitable principles

Jurisdiction — Dispute — ICSID Convention, Article 25(1) — Whether dispute was of a legal nature — Whether the dispute arose out of an investment — Whether the claim was premature

Jurisdiction — Investment — Whether a foreign investor had standing to bring claims for damages suffered by the assets, investments and activities of its local subsidiary

Procedure — Addition of a party — ICSID Convention, Article 25(2)(b) — ICSID Convention, Article 46 — Whether the local subsidiary of the claimant could be added as a party to the dispute — Whether the request for addition could be made by the claimant — Whether the claims of the local subsidiary needed to be different from those of the foreign parent

Interpretation — World Trade Organization — International Monetary Fund — Whether the norms of multilateral economic institutions assisted in investment treaty interpretation

Defence — Necessity — Exclusions and reservations — Public order — Essential security interests — Margin of appreciation — Customary international law — World Trade Organization — Whether the strict conditions of application for the plea of necessity under customary international law applied to the safeguard clause — Whether the economic crisis required the maintenance of public order or the protection of essential security interests — Whether the law of the World Trade Organization assisted in the interpretation of the defence — Whether the State had any reasonably available alternatives that were more compliant with its international obligations — Whether the State was barred by its own conduct from relying on the defence

Defence — Necessity — ILC Articles on State Responsibility, Article 25 — Customary international law — Whether the defence under general international law was available in the alternative

Free transfer — Interpretation — International Monetary Fund — Whether a currency transfer impeded by a bank freeze was related to an investment — Whether the provisions and principles of the International Monetary Fund assisted in interpretation of the investment treaty standard

Fair and equitable treatment — Legal stability — Legitimate expectation — Taxation — Whether the expectation of stability in the exchange and currency regime was legitimate and protected by the BIT — Whether unilateral restructuring of governmental financial instruments was reasonable once the economic crisis had ended — Whether imposition of a capital tax on a nominal gain resulting from currency devaluation was in breach of fair and equitable treatment

Expropriation — Indirect expropriation — Monetary sovereignty — Municipal law — Constitutional law — Taxation — Whether sovereign management of the exchange rate could result in an indirect expropriation — Whether compulsory currency conversion was protected from expropriation under constitutional law — Whether constitutional court decisions were relevant — Whether a breach of constitutional law amounted to an expropriation under international investment law — Whether losses for payment delays could be considered an expropriation — Whether unilateral restructuring of governmental financial instruments was an expropriation — Whether imposition of a capital tax on a nominal gain resulting from currency devaluation was an expropriation

Umbrella clause — Whether the State entered into any commitments with regard to investments — Whether the standard applied to contractual undertakings made to a local subsidiary — Whether domestic laws addressed to the general public created obligations specific to a foreign investor

Remedies — Interest — Compound interest — Whether simple or compound interest should be awarded in the circumstances

Annulment — Manifest excess of powers — Failure to state reasons — Serious departure from a fundamental rule of procedure — ICSID Convention, Article 52(1) — Whether the tribunal failed to decide the investor’s claim for loss after the state of necessity was over — Whether the tribunal failed to determine the investor’s expropriation claim in relation to unilateral restructuring of governmental financial instruments — Whether the tribunal failed in its construction of the scope of freedom of transfer — Whether the tribunal failed to explain why the State could no longer rely on the necessity defence — Whether the tribunal had awarded damages on a ground not invoked by the investor

Annulment — Procedure — Whether an annulment committee may consider an additional ground on its own motion

Jurisdiction — Investment — Foreign investor — NAFTA, Article 1101 — Whether measures relating to trade in goods may also be related to investors or investments

Investment — NAFTA, Article 1139 — Whether actual or potential market share was an investment — Whether business income of a subsidiary qualified as an investment

National treatment — NAFTA, Article 1102 — Like circumstances — Whether nationals were in like circumstances to the investor — Whether the range of products, level of regulation or economic circumstances of nationals relevantly distinguished their circumstances — Whether treatment of the investor was less favourable on the basis of nationality

Most-favoured-nation treatment — NAFTA, Article 1103 — Whether the investor had identified a comparable investor or investment of a NAFTA party or non-party in the territory of the host State

Fair and equitable treatment — Minimum standard of treatment — NAFTA, Article 1105 — Customary international law — Legal stability — Legitimate expectation — Transparency — Arbitrariness — Whether the minimum standard of treatment had evolved through State practice — Whether the standard required the host State to provide a stable and predictable environment in which reasonable expectations were upheld — Whether the standard required transparency — Whether arbitrariness may constitute a breach of the standard — Whether an import measure targeting an investor for the purpose of resolving a trade dispute with its home State breached the minimum standard — Whether circumstances of the host State were relevant — Whether an exempted tax measure may nevertheless assist in understanding the context to challenged measures

Performance requirements — NAFTA, Article 1106 — Whether a tax advantage conditional on domestic production was connected to an investment

Expropriation — NAFTA, Article 1110 — Customary international law — Whether measures resulted in radical deprivation of the investment — Whether temporary loss of business income was an expropriation

Defence — Countermeasures — ILC Articles on State Responsibility, Article 22 — Customary international law — NAFTA — Whether countermeasures between States may be invoked as a circumstance precluding the wrongfulness of measures otherwise in breach of investor rights — Whether investor rights were of a substantive or procedural nature

Jurisdiction — Countermeasures — Whether an investment tribunal had jurisdiction to determine the validity of countermeasures

Remedies — Damages — Whether an investor may claim damages for losses incurred from measures determined to be illegal by another international tribunal — Whether an investor may claim for loss of profits due to the inability to sell goods to its local subsidiary

Remedies — Damages — Mitigation — Whether the damages claim was mitigated by the investor’s share of import quotas — Whether the damages claim was mitigated by the treatment and profitability of a distinct investment of the investor

Fair and equitable treatment — Minimum standard of treatment — NAFTA, Article 1105 — Customary international law — Legitimate expectation — Legal stability — Whether the minimum standard protected an investor’s legitimate expectations — Whether the minimum standard protects an investor from changes in the legal and business framework — Whether the State made any promise or representation of a contractual nature — Whether the measures constituted egregious behaviour

Performance requirements — NAFTA, Article 1106 — Interpretation — Meaning of “services” — Whether research and development qualified as services — Whether the measure required the investor to prefer local goods and services

Defence — Exclusions and reservations — NAFTA, Article 1108 — Subordinate measures — Whether a subordinate measure was adopted under the authority of and consistent with the reserved measure — Whether new subordinate measures should be assessed for consistency with existing subordinate measures

Remedies — Future damages — NAFTA, Article 1116 — Whether a tribunal may award compensation for future damages

Remedies — Standard of proof — Customary international law — Whether compensation could be made for obligations incurred but not yet paid — Whether uncertainty was to be construed against the wrongdoer

Remedies — Quantum — Customary international law — Whether a tribunal may increase compensation to offset an investor’s future tax liability

Remedies — Quantum — Whether losses represented expenditure undertaken pursuant to the measure or would have been made in the ordinary course of business — Whether compensation should be decreased to reflect tax benefits and royalty payment deductions enjoyed by an investor

Contract — Settlement — Award on agreed terms — Whether an award on agreed terms could be issued in the absence of party signatures

Jurisdiction — UNCITRAL Rules, Article 21(3) — Whether a jurisdictional objection was untimely and had been waived

Contract — Applicable law — Whether the governing law of the contract incorporated principles of customary international law

Defence — Constitutional law — Whether the contract was an international business or economic transaction requiring parliamentary approval

Defence — Estoppel — Whether the State’s reliance on its own failure to follow constitutional requirements was estopped under international law and public policy

Contract — Breach of contract — Interpretation — Whether the requirement of the issuance of a Certificate of Satisfaction had been fulfilled

Remedies — Damages — Whether the claimant should be awarded lost profits for substantial loss caused by the breach of contract

Remedies — Quantum — Whether the award of expectation damages for lost profits should be discounted for risks and the time value of money

Jurisdiction — Provisional application — Energy Charter Treaty, Article 45 — Whether the State was required to make prior declarations to benefit from limitations on the treaty’s provisional application — Whether the limitation clause required analysis of the treaty’s overall consistency with domestic law or of the consistency of each treaty provision

Jurisdiction — Foreign investor — Energy Charter Treaty, Article 1(7) — Origin of capital — Whether an investor must have an effective link with the home State

Jurisdiction — Investment — Energy Charter Treaty, Article 1(6) — Definition of protected investment — Whether the ultimate source of investment must be foreign

Jurisdiction — Denial of benefits — Energy Charter Treaty, Article 17 — Whether the State exercised its right to deny the treaty’s benefits — Whether the investors were owned or controlled by citizens of a third State

Jurisdiction — Fork-in-the-road clause — Energy Charter Treaty, Article 26(3)(b)(i) — Whether domestic and international human rights proceedings covered the same parties, facts and cause of action as the investment treaty claims

Defence — Unclean hands — Whether the doctrine of unclean hands constituted a general principle of law — Whether the doctrine applied to how the investor obtained an investment — Whether the doctrine of unclean hands applied to the investors’ performance of the investment

Defence — Exclusions and reservations — Energy Charter Treaty, Article 21 — Taxation measures — Expropriation — Good faith — Whether the carve-out applied only to bona fide taxation measures — Whether the measures could be clawed back as expropriative taxes

State responsibility — Attribution — State-owned entity — ILC Articles on State Responsibility — Whether the State can be held liable for the actions of a State-owned entity — Whether the State can be held liable for the actions of a bankruptcy administrator

Expropriation — Energy Charter Treaty, Article 13 — Whether the State’s actions had an effect equivalent to nationalisation or expropriation — Whether the expropriation was lawful

Remedies — Contributory fault — Mitigation — ILC Articles on State Responsibility, Article 31 — ILC Articles on State Responsibility, Article 39 — Whether the investors’ use of tax avoidance arrangements contributed in a material and significant way to their loss — Whether the investors could have mitigated their loss

Remedies — Quantum — Whether the investors’ loss should be valued at the date of expropriation or the date of award — Whether there was any risk of double recovery

Jurisdiction — Foreign investor — ICSID Convention, Article 25(2) — Whether the requirements of foreign nationality or control were satisfied

Jurisdiction — Investment — ICSID Convention, Article 25 — Salini test — Origin of capital — Whether the claims related to foreign investments fulfilling the applicable test

Jurisdiction — Standing — Whether the claimants had standing to bring a claim for loss in respect of assets held by local companies

Jurisdiction — Provisional application — VCLT, Article 25 — Whether the parties to the BIT agreed to provisional application prior to the date of its ratification

State responsibility — Attribution — ILC Articles on State Responsibility, Article 4 — ILC Articles on State Responsibility, Article 8 — ILC Articles on State Responsibility, Article 11 — Customary international law — Whether the State could be held responsible for police inaction in the face of the unlawful occupation movement — Whether the occupation movement was under the direct order or control of the State

Defence — Proportionality — Margin of appreciation — Whether land expropriations could be justified as a proportionate exercise of State regulatory powers — Whether a margin of appreciation may be applied in the context of investment treaty disputes

Expropriation — Direct expropriation — Compensation — Non-discrimination — Due process — Public purpose — Whether the taking of land complied with the conditions of a lawful expropriation — Whether direct debit from bank accounts and seizure of grain at less than market price constituted unlawful expropriations

Expropriation — Indirect expropriation — Whether assets that were not directly expropriated but were no longer commercially viable were unlawfully expropriated — Whether changes to water permits were so significant as to constitute expropriation — Whether refusal to release foreign currency led to expropriation of an unpaid loan

Fair and equitable treatment — Legitimate expectation — Whether the State provided specific assurances that the investors would not be expropriated — Whether changes to water permitting without compensation violated legitimate expectations — Whether restrictions on foreign currency and exchange were in breach of fair and equitable treatment

Full protection and security — Law enforcement — Whether the State took all reasonable measures to remove occupiers from the investors’ land — Whether the police were overwhelmed or would have needed to use disproportionate force — Whether responsibility was excepted by a situation of war or revolution

Free transfer — Whether refusal to release foreign currency and imposition of local currency constituted an investment treaty breach

Defence — Necessity — ILC Articles on State Responsibility, Article 25 — Customary international law — Whether property invasions should be considered a threat to an essential interest of the State — Whether there was an essential interest of the State at stake — Whether there was a grave and imminent peril to the existence of the State or merely the incumbent political party — Whether the acts of State were the only way to stop the occupations — Whether the measures were in violation of obligations erga omnes not to discriminate based on race — Whether the State contributed to the situation

Remedies — Restitution — Whether it was possible to reinstate title to expropriated land

Remedies — Damages — Whether there was a compensable difference between the value of land as is and but for the unlawful measures due to damage and loss of productivity

Remedies — Moral damages — Whether exceptional circumstances existed to award moral damages — Whether corporate claimants may be awarded moral damages

Annulment — Serious departure from a fundamental rule of procedure — ICSID Convention, Article 52(1) — Whether the State had been denied an opportunity to present a case on illegality due to procedural orders on admissibility

Annulment — Serious departure from a fundamental rule of procedure — Composition of tribunal — Corruption of tribunal member — ICSID Convention, Article 52(1) — Waiver — Whether the late disclosure of the tribunal president’s role with another World Bank body formed a basis for annulment — Whether the State waived its right to challenge the arbitrator

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1) — Whether the tribunal failed to apply the proper law for the defence of necessity and legality of investments