Jurisdiction — Based on bilateral investment treaty — No contractual relations between claimant investors and Respondent State — Consent to jurisdiction manifested by commencement of proceedings in accordance with treaty — No right of Respondent unilaterally to withdraw consent

Admissibility — Claimant’s standing to bring proceedings — Majority shareholders having foreign nationality suing in relation to conduct affecting locally incorporated company — Standing upheld

Expropriation — Measures equivalent to — Grant of free-zone status for mining company — Substantial investment in reliance on free-zone status — Subsequent change in government policy leading to revocation of status — Whether measure equivalent to taking — Whether compensation required — Belgium—Burundi Bilateral Investment Treaty, Article 4

Expropriation — Whether lawful under international law — Non-discriminatory — Valid public policy — Due process under national law — Only compensation lacking — No offer made at the time of taking — Respondent given four months to pay compensation or to restore permit, otherwise taking would be held internationally unlawful — Belgium—Burundi Bilateral Investment Treaty, Article 4

Arbitration — Procedure — Failure by Respondent State to appear — Obligation on tribunal to consider jurisdiction and merits of claim despite non-appearance — icsid Convention, Article 45 — Arbitration Rules, Rule 42

Settlement — Amicable settlement following determination on merits — Settlement agreement embodied in Award — Arbitration Rules, Rule 43(2) – Award of costs following settlement

Arbitration — Award — Partial annulment — Judicial review — Supplementary Reasons for Judgment — Whether appropriate case to correct Order flowing from Reasons of Judgment — Section 34(4) of International Commercial Arbitration Act — Adjournment of judicial review proceedings — Whether appropriate — Arbitral proceedings — Whether Tribunal to be given opportunity to consider breaches of Articles 1105 and 1110 of nafta based on concepts within the scope of submission to arbitration — Damages — Whether Metalclad entitled to interest prior to 20 September 1997

Expropriation — Articles 1105 and 1110 of nafta — Annulment of part of Award relating to breaches involving decisions beyond scope of submission to arbitration — Whether Tribunal to be given opportunity to consider breaches of Articles 1105 and 1110 of nafta based on concepts within the scope of submission to arbitration

Interest — Exclusion of interest in the Award — Whether breach of Articles 1105 or 1110 of nafta based on concepts within the scope of submission to arbitration — Whether Metalclad entitled to interest from 5 December 1995 to 20 September 1997

Settlement — Agreement for settlement of dispute — Recorded as award on agreed terms — Discontinuance of proceedings

Award — Award on agreed terms — Agreement for settlement of dispute — Nature of agreement — No additional rights, benefits or privileges conferred — Principles governing interpretation and implementation — Agreement binding on legal successors to parties — Article 55 of icsid (AF) Arbitration Rules

Jurisdiction — Objections to jurisdiction — Bilateral investment treaty — Exceptions to the nationality requirement — icsid Convention, Article 25(2)(b) — Whether company incorporated in one State Party and owned by nationals of another State Party is a “national” of the former — Existence of prima facie “legal dispute” for the purpose of determining jurisdiction

Arbitration — Bilateral investment treaty — Alleged violations of bit by Respondent through its State enterprise

Foreign investment — Failure to provide “fair and equitable treatment” and “full protection and security” to an investment — UK–Egypt Bilateral Investment Treaty, Article 2(2) — Failure to prevent seizure of an investment — Failure to impose substantial sanctions for seizure

Expropriation — Failure to provide prompt, adequate and effective compensation — UK–Egypt Bilateral Investment Treaty, Article 5

Municipal law — Time bar — Whether claims time-barred by domestic statute of limitation — Domestic statutes of limitation not binding on international tribunal

Damages — Determination of damages — Prompt, adequate and effective compensation — Compensation amounting to the market value of an investment — UK–Egypt Bilateral Investment Treaty, Article 5

Annulment — Time limit for request for annulment — icsid Convention, Article 52 — Raising new arguments related to a ground of annulment invoked within the time limit fixed in the icsid Convention

Annulment — Grounds for — Manifest failure to apply applicable law — icsid Convention, Article 42(1) — Subject matter of commercial agreements as opposed to subject matter brought before icsid arbitration — Role of international law in the context of Article 42(1) — Relationship between international law and domestic law

Annulment — Grounds for — Manifest excess of power by arbitral tribunal — Sufficiency of evidence — Relationship between domestic arbitration and arbitration under the icsid Convention — Compensation under domestic arbitration to be taken into account when awarding damages under the icsid Convention — Criteria for compensation under UK–Egypt Bilateral Investment Treaty, Article 5

Compensation — Interest — How calculated — Compound interest — Exercise of discretion

Jurisdiction — Respondent contesting jurisdiction of icsid — Request for icsid arbitration by investor holding dual United States and Peruvian nationality — Request based on 1994 Convention between Peru and Paraguay on reciprocal promotion and protection of investments — Whether Claimant entitled to treaty protection — Whether of Peruvian nationality

Jurisdiction — Consent to icsid arbitration — Whether given by 1994 Convention between Peru and Paraguay on reciprocal promotion and protection of investments — Arbitration without privity — icsid Convention, Article 25(1)

Foreign investment — Investment protection — Central Bank encouragement of investment — Official representations as to safety of investment — Bank certification of investment bonds — Whether amounting to guarantee of investment — Bankruptcy of local company amid general financial crisis — 1994 Convention between Peru and Paraguay on reciprocal promotion and protection of investments — Whether breached

Foreign investment — Investment protection — Bankruptcy — Lawon bankruptcy leading to loss of investment — Whether conduct tantamount to expropriation — 1994 Convention between Peru and Paraguay on reciprocal promotion and protection of investments

Costs — Discretion — Respondent failing on jurisdiction but succeeding on merits — Conduct of Respondent officials “non-exemplary” — No order against Claimant for Respondent’s costs

nafta — Chapter 11 — Claim pursuant to Additional Facility Rules — Place of arbitration — Relevant factors — Joinder of jurisdictional objections to merits — Extent of discovery — Confidentiality

Municipal law — Confidentiality of proceedings — Application of national freedom of information legislation to pleadings, minutes of meetings, orders of Tribunal — Extent and duration of parties’ obligation of confidentiality absent statutory obligations of disclosure — nafta, Article 1126, Annex 1137.4 — Arbitration (Additional Facility) Rules, Articles 14, 24, 38, 44

State responsibility — nafta, Articles 1102, 1105, 1110 — Application to acts done before nafta’s entry into force — National court decisions after entry into force — Retrospective effect

Jurisdiction — Proceedings brought under nafta, Article 1116(1) — Whether brought “on behalf of an enterprise” — Failure to rely on Article 1117(1)

Jurisdiction — Termination of an investment — Lapse of contractual option — Bank’s foreclosure on mortgage over investment property — Subsisting claims under national law — Whether an “investment” — Relevance of ownership of national law proprietary rights — nafta, Article 1139

Admissibility — Claim brought more than three years after incidents causing damage — Three-year time-limit — Application — nafta, Article 1116(2)

nafta — Free Trade Commission interpretation — Whether binding on Chapter 11 Tribunal — Whether “interpretation” or “amendment” — Scope of ftc interpretation — Effect on pending proceedings

State responsibility — nafta, Article 1105(1) — Denial of justice — Whether “new law” applied retrospectively — Procedural decisions — Scope and standard of nafta review

State responsibility — nafta, Article 1105(1) — “Full protection and security” — Statutory immunity of State agency in respect of intentional torts — Tortious interference with contractual relations — Jury finding implying lack of legitimate regulatory purpose — Whether immunity in breach of Article 1105(1)

State responsibility — nafta, Article 1105(1) — “Full protection and security” — Non-application of trade practices law to regulatory authority

nafta — Chapter 11 — Award of costs and expenses — Extent of Tribunal’s discretion

Arbitration — Bilateral investment treaty — Investment dispute — Alleged violations of bit by Respondent through its State enterprise — Misrepresentations in connection with purchase of local branch of Estonian social bank — Failure to adhere to write-off agreement to amortize losses arising from purchase — Alleged breach of settlement agreement to assign claims — Unjustified revocation of banking licence — Harassment of claimants — Damages

Jurisdiction — Objections by Respondent — No arbitrable investment dispute — Alleged violations of investment treaty denied — Damages — Counterclaim — Whether dispute concerning an investment

Counterclaim — Dismissal of claim and counterclaim — No breach of bit — No misrepresentations associated with purchase — No breach of settlement agreement — No breach of write-off agreement — Revocation of bank licence not contrary to bit or Estonian law — No proof of harassment of Claimants — Respondent’s counterclaim dismissed

Award — Request for supplementary decisions and rectification — Alleged failure by tribunal to discuss specific violations of bit contended by Claimants — Request denied — No omission on part of Tribunal — Costs of request awarded against Claimants

Arbitration – Request by Claimant — US–Sri Lanka Bilateral Investment Treaty — Jurisdiction of icsid and Arbitral Tribunal — Both jurisdiction ratione personae and materiae must be satisfied — Respondent’s objections to jurisdiction

Jurisdiction — Objection to jurisdiction ratione personae — Nationality requirement of icsid Convention — Theories of partnership or assignment — Claimant permitted to file its own claim in its own name — Capacity to bring claim not modified by existence of international partnership — Pacta tertiis principle — No invocation of icsid Convention by non-State party, non-State party national or company– No improvement of rights of non-State party company by assignment of rights to party with standing before Tribunal

Jurisdiction — Objection ratione materiae — Existence of an “investment” — Requirements of Article 25(1) of the icsid Convention not satisfied — Existence of investment within meaning of Convention and bit — Preparatory and development expenses incurred pursuant to letter of intent from Respondent — Recovery of development costs following failure of negotiations — Definition of “investment” a question of law — No investment within meaning of icsid Convention

Arbitrators — Composition of tribunal — Challenge to President of ad hoc Committee — Procedure for challenging members of ad hoc Committee — ICSID Convention, Article 53(4) — Validity of Arbitration Rule 53

Arbitrators — Composition of tribunal — Challenge to President of ad hoc Committee — Connection between President’s law firm and related company of Claimant — No personal involvement of President — No general retainer — Partner’s legal advice on matters unrelated to dispute before the Committee — Work substantially complete before commencement of proceedings — De minimis rule — Challenge rejected

Jurisdiction — Relation between concession contract, bilateral investment treaty and icsid Convention — Dispute with provincial authorities relating to investment contract — Investment contract providing for exclusive jurisdiction of provincial courts — Whether precluding claim under treaty

Jurisdiction — State responsibility claim against Argentina arising from conduct of provincial authorities — Non-designation of province under icsid, Article 25 — Article 25 irrelevant to treaty claim

Treaties — Bilateral investment treaty — Argentina–France bilateral investment treaty, Article 8(2) — “Fork in the road” provision — Relevance to Tribunal’s jurisdiction over treaty claim — Relevance to merits of claim

Annulment — Annulment proceedings — Claimant seeking partial annulment of decision on merits — Respondent seeking in the alternative annulment of whole award — Admissibility of Respondent’s claim — Whether a “counterclaim” — Power of ad hoc Committee to determine extent of annulment — Respondent’s arguments admissible

Annulment — Annulment proceedings — Tribunal finding that federal authorities did not fail to assist in resolution of provincial claim — No basis for annulment — icsid Convention, Article 53

Annulment — Annulment proceedings — State responsibility — Tribunal finding that it could not determine whether there was a treaty breach prior to municipal court proceedings on the contract claim — Bilateral investment treaty excluding requirement of exhaustion of local remedies — Manifest excess of jurisdiction — Failure to give reasons — Relation of treaty claim to contract claim — icsid Convention, Articles 26, 53 — ilc Articles on Responsibility of States for Internationally Wrongful Acts, 2001, Article 3

Provisional measures — Whether objection to jurisdiction precludes recommendation of provisional measures — Registration by Secretary-General under Article 36 of icsid Convention — Whether registration “unless dispute manifestly outside jurisdiction” same as prima facie jurisdiction — Extent of jurisdiction to grant provisional measures

Provisional measures — Whether binding — Article 41 of icj Statute — Authority of icj’s decision in LaGrand — icsid Convention, Article 47 — Arbitration Rules, Rule 39

Provisional measures — To preserve rights of parties — No evidence of existing right — Whether “hypothetical” right may be protected by provisional measures

Municipal law — Provisional measure of Tribunal said to interfere with ministerial decision — Municipal law not binding on international tribunal — Exercise of discretion

Expropriation — Provisional measures to preserve property claim — Claim “generic” and unrelated to specific assets — Whether provisional measures necessary

Provisional measures — State of tension between parties — Duty of Tribunal proprio motu to ensure no action taken which may prejudice rights of the other party or aggravate or extend dispute

Costs — Provisional measure for security for costs — Alleged probability of unsuccessful claim — Claimant alleged to be without means — Whether provisional measure required to protect Respondent’s interests — Failure of Convention and Rules to provide for security for costs

Jurisdiction — Consent — Contractual submission to local jurisdiction — Whether ousting jurisdiction under bilateral investment treaty — Local jurisdiction not susceptible to prorogation whether consent given — icsid Convention, Article 25(1)

Jurisdiction — Jurisdiction ratione personae — National motorway company with majority State ownership — Whether “agency” of State — icsid Convention, Article 25(1)

Jurisdiction — Jurisdiction ratione materiae — “Investment” — Particular relevance of State law in determining existence of an investment — Dual requirements of bit and icsid Convention, Article 25(1) — Whether satisfied

Jurisdiction — Jurisdiction ratione materiae — Claim of breach of bit — Not excluded because also based on contract — Onus of proof on Claimant to establish breach of bit attributable to the State — Relation of responsibility under treaty to contractual liability

Admissibility — bit requiring notification to host State requesting amicable settlement — Notification to Minister also holding office as President of local contracting company — Whether sufficient notification

State responsibility — Organ of the State — Structural and functional criteria — Acts of a State corporation attributable to the State — Relation to contractual claim

Arbitration — International Centre for Settlement of Investment Disputes — Jurisdiction — Conditional consent to icsid jurisdiction — Control over locally registered company passing with Venezuela’s consent to a national of an icsid State party — icsid Convention, Article 25(2)(b)

Nationality — Deemed nationality of locally incorporated company — Whether “foreign control” indicates ultimate beneficial interest — Transfer of shares to a holding company — Transfer not a sham — Transfer consented to by Respondent without any misrepresentation on Claimant’s part — icsid Convention, Article 25(2)(b)

Diplomatic protection — Diplomatic representations made by State not an icsid party — Not amounting to espousal — Whether inconsistent with standing of holding company not a national of that State — Distinction between icsid arbitration and diplomatic protection — icsid Convention, Article 27

Arbitration — Arbitral procedure — Place of arbitration — icsid Additional Facility arbitration pursuant to Chapter 11 of nafta — Canada or United States — Standard of review of international arbitration in both countries similar — Convenience of parties and Tribunal — Arbitration conducted at icsid headquarters — Neutrality as between parties

Arbitration — Documents — Disclosure — Documents available to the public on reasonable inquiry — Whether requiring to be specifically disclosed — Test of necessity — Arbitration (Additional Facility) Rules, Article 41(2)

Jurisdiction — Alleged breach of nafta Article 1103 asserted in course of pleadings — Article 1103 not mentioned in Notice of Intention to arbitrate — Whether Tribunal deprived of jurisdiction over Article 1103 claim — nafta, Article 1119

Jurisdiction — Over “incidental or additional claims” — How related to primary claim — Requirement of close relationship or connection — Claimant failing to present evidence of such connection — Absence of jurisdiction — Arbitration (Additional Facility) Rules, Article 48(1)

Discrimination — Local manufacture requirement — Applicable equally to local as to foreign suppliers — No showing of discrimination in law or fact nafta, Article 1102

nafta — Domestic content requirement — Whether excluded from nafta Article 1106 as procurement by a Party — Whether federal funding programme involves procurement — Whether procurement by component State “procurement by a Party” — ilc Articles on Responsibility of States for Internationally Wrongful Acts, Article 4 — nafta, Article 1108, Annex 1001.1a-3

Foreign investment — Investment protection — “Full protection and security” — naftaftc Interpretation of 31 July 2001 — Whether binding on Chapter 11 Tribunals — Meaning of Interpretation — Requirement on Claimant to show that treatment violated a specific rule of customary international law relating to foreign investment — nafta, Articles 1105(1), 1132

nafta — Domestic content requirement — Whether violating contemporary standards of international law embodied in Article 1105(1) — Whether idiosyncratic, aberrant or arbitrary

nafta — Most-favoured-nation treatment — Onus of proof — mfn treatment not applicable to governmental procurement — nafta, Articles 1103, 1108(7)(a)

Costs — Costs against defeated Claimant — Nature and complexity of proceedings — Costs shared equally between parties

icsid (Additional Facility) — Rules — Venue of arbitration — Relevant factors — Neutrality of forum — Applicability of New York or Panama Conventions — Differences between two Conventions — Positions taken by Government of Canada in earlier proceedings — Whether relevant — Convenience of parties and counsel — nafta Articles 1122, 1130 — Arbitration (Additional Facility) Rules, Articles 20, 21

nafta — Chapter 11 — First arbitration commenced without valid waiver under Article 1121(2)(b) — First Tribunal deciding that it lacked jurisdiction over the claim — Whether new proceedings permissible — nafta Articles 1120, 1121

Arbitration — Res judicata — Decision denying jurisdiction of first Tribunal — Whether precluding new arbitration on same claim — Interpretation of first Tribunal’s decision — nafta Article 1136 — icsid (Additional Facility) Rules, Article 53(4)

Arbitration — Abuse of process — Successive arbitrations of same claim — Whether Tribunal has inherent power to stay proceedings — No evidence of lack of bona fides — Second arbitration allowed

Costs — Costs and expenses — Unsuccessful jurisdictional objection — Whether Respondent should be required to pay costs and expenses in any event — Extent of Tribunal’s discretion