Applicable Law — Absence of agreement of the parties — ICSID Convention, Article 42(1) — Whether applicable in determining jurisdiction — Scope of Article 25 of Convention — Whether only Article 25 applicable in determining jurisdiction

Jurisdiction — Whether dispute of a legal nature — Whether dispute arises directly from investment — Significant connection between the challenged measures and the investment — Effect of renegotiation proceedings on arbitral proceedings

Jurisdiction — Consent of State to ICSID proceedings — Effect of conclusion of bilateral investment treaty

Jurisdiction — Forum selection — Submission to local jurisdiction — Whether contract-related disputes can be submitted to ICSID tribunal — Effect of “umbrella clause”

Nationality — ICSID Convention, Article 25(2)(b) — Whether investor exercises control over company — Minority or indirect shareholders — Whether investor not exercising control may bring claim under BIT

Foreign investment — Definition of investment — Minority or indirect shareholders — Whether interests of foreign investors may be combined — Exercise of joint control — Different nationalities of investors and protection by different treaties

Interpretation — Appropriate rules for interpretation of bilateral investment treaties — Vienna Convention on the Law of Treaties — Role of arbitral tribunals in interpretation

Diplomatic protection — Difference between diplomatic protection and international investment protection — Whether diplomatic protection available as a residual mechanism

Jurisdiction — NAFTA, Article 1131(1) — Whether tribunal has jurisdiction to review violations of GATT — NAFTA, Articles 1116 and 1117 — Limitation on tribunal's jurisdiction — Whether tribunal may seek guidance in GATT/WTO jurisprudence

Procedure — Applicability of lex loci arbitri to procedural matters — UNCITRAL Rules, Article 32(2) — Whether partial award is final and binding — UNCITRAL Rules, Article 15(1) — Whether tribunal may reconsider a partial award at later stage — UNCITRAL Rules, Article 35 — Whether partial award has different binding force from final award

Jurisdiction — Challenge to arbitrator — UNCITRAL Rules, Article 12(1) — No power of UNCITRAL tribunal to decide challenges to arbitrators

Jurisdiction — NAFTA, Article 1101 — Measures relating to investors and investment — Affirmative finding under Articles 1102, 1105 and 1110 of NAFTA as evidence of “relationship” under Article 1101 — Failure to show intention to harm foreign producers — Failure to show a significant connection between the challenged measures, the investor and the investment

Procedure — Amendment of claim — UNCITRAL Rules, Article 20 — Whether claimant may rely on amended legislation as evidence — Due process of law — Whether claimant may bring new claim relating to amended legislation — NAFTA, Article 1121(1) — Requirement of waiver — When amendment permissible under Articles 1116 and/or 1117 of NAFTA — Requirement to show loss and damage

Evidence — Admissibility of evidence — Requirement to make request for disclosure of evidence in timely manner — Good faith in collecting evidence — Claimant's indifference to the legality of evidence collected — UNCITRAL Rules, Article 15(1) — Equal treatment and procedural fairness — UNCITRAL Rules, Article 25(6) — Tribunal's discretion to admit evidence — No value of evidence obtained unlawfully — Credibility of evidence — When tribunal may resort to inference

Interpretation — Vienna Convention on the Law of Treaties, Article 32 — When recourse to supplementary means is appropriate

Interpretation — NAFTA, Article 1102 — Cumulative requirement to demonstrate intention to favour domestic investors and “like circumstances” — Whether comparator of “like circumstances” should be whole industry or identical investor — Intention to discriminate — Whether GATT/WTO jurisprudence is relevant in interpretation

Interpretation — NAFTA, Article 1105 — Vienna Convention on the Law of Treaties, Article 31(3)(a) — Whether interpretation by NAFTA Free Trade Commission is a “subsequent agreement” — NAFTA, Article 1105, minimum standard of treatment — Whether measures arbitrary, unfair, unjust and discriminatory — Whether differentiation between nationals and aliens permitted — Customary international law

Expropriation — NAFTA, Article 1110 — Measure tantamount to expropriation — Whether regulation for public purpose expropriatory and compensable

Costs — UNCITRAL Rules, Article 40 — Whether unsuccessful party should bear all costs — Apportionment of costs — Reasonable costs

Jurisdiction — Contract claims as opposed to treaty claims — Umbrella clause — Whether ICSID tribunal has jurisdiction over breach of contract obligations — Whether violation of a contract is a violation of international law — Umbrella clause as an exception to general rules of international law

State responsibility — Attribution — ILC Draft Articles on State Responsibility — Whether BIT contains guidance on attribution — Attribution of acts of entities separate from the State — Attribution of acts relating to investment — Distinction between attribution of commercial and governmental conduct

State responsibility — Liability for breach of contract by State — Co-existence of responsibility at municipal and international level — Requirement of restrictive interpretation — Wording of clause decisive in determining assimilation of contractual obligations to treaty obligations — Obligation to observe contractual agreements in good faith — Conclusion of collective labour agreement — Whether investor's knowledge of negotiations precludes breach

Foreign investment — Whether party is responsible for failure of investment — Knowledge of company's financial situation — Failure to exercise due diligence in company restructuring

Foreign investment — Full protection and security — Scope of State's obligation to protect investment — Duty to provide protection to foreign nationals in customary international law — Impairment of investment by arbitrary or discriminatory measures — Whether initiation of judicial reorganization proceedings can be arbitrary or discriminatory — Treatment of other investors

Foreign investment — Fair and equitable treatment — General standard and its specific applications

Expropriation — Whether expropriation through judicial reorganization proceedings possible — No expropriation where no viable company and no valuable assets

Costs — Principle that injured party should be compensated — “Loser pays” principle not common in international law — Considerations in the award of costs

Procedure — Participation of third parties in ICSID proceedings — Amicus curiae petitions — Whether consent of parties is necessary to admit petitions — Powers of ICSID tribunal in case of third-party petitions

Procedure — Request for postponement of hearing — Whether sufficient cause exists to postpone hearing

Evidence — ICSID Convention, Article 43 — Discretion of tribunal in ordering production of evidence — Tribunal's considerations in ordering the production of evidence

Jurisdiction — Interplay between forum selection clauses — Consent to ICSID jurisdiction — Tribunal's duty to exercise jurisdiction — Claims under investment contracts — Whether dispute settlement clause in contract precludes ICSID jurisdiction — Whether ambiguous clause may imply a waiver of jurisdiction

Jurisdiction — Whether change of incorporation bars jurisdiction — Corporate migration — Applicable law for the evaluation of the legal status of a company — Corporate restructure without host State's consent — Whether transfer of ownership bars jurisdiction — Legal effect of statements by State party to BIT — ICSID Convention, Article 25(1) and (3)

Foreign investment — Investor — National for purposes of ICSID jurisdiction — Foreign control — Meaning of “controlled directly or indirectly” — Legal potential to control and exercise of actual control — Whether majority ownership is sufficient to demonstrate “control” — Whether “control” requires demonstration of effective control — Control as quality of ownership interest

Foreign investment — Definition of investment — Whether proprietary and contractual rights need to exist — Whether valid claim may exist under BIT in absence of actionable contract — Umbrella clause — Whether pre-contractual agreement binding and constituting an investment in host State — Pre-contractual liability — Insufficient inducement by host State — Whether pre-contractual expenses constitute investment — Distinction between investment and risk

Foreign investment — Contract claims as opposed to treaty claims — Umbrella clause — Whether violation of contract is violation of international law — Whether host State or another entity party to contract — Conditions for existence of contract — Binding force of contract to negotiate — Obligation to negotiate in good faith

State responsibility — Attribution — Whether State responsible for actions of State-owned companies — Whether particular standards of attributability apply in BIT claims — Whether governmental conduct in BIT matters should be different from that required by general international law

Function of ICSID tribunal — Assessment of claims — Sources of law — Whether tribunal may rely on domestic law and foreign case law — Corruption — How tribunal should approach claims of corruption

Costs — Apportionment of costs — Respectable claims on the merits to be considered in apportionment of costs

Jurisdiction — Jurisdiction when party to dispute not party to ICSID Convention — Law applicable in determining tribunal's jurisdiction — Whether domestic law applicable in interpretation of treaties — Vienna Convention on the Law of Treaties — BIT as principal source of law — Whether arbitration tribunal permitted to consider international investment case law

Jurisdiction — Whether pre-arbitration procedures complied with — Whether notice of arbitration must be submitted through diplomatic channels — Limitations on jurisdiction

Foreign investment — Definition of investment — Assets protected under the BIT — Contract as an investment — Whether shareholding in company constitutes investment — Whether investment through company incorporated in claimants’ home State qualifies as an investment — Whether legality of investment should be considered in the jurisdictional stage

Jurisdiction — Definition of investor — Whether shareholder in company is an investor for purposes of BIT — Protection of indirect investments — Scope of indirect investments covered by BIT — Legal distinction between company entitled to claim under BIT and its shareholders

Jurisdiction — Most-favoured-nation (MFN) clause — Incorporation by reference — Whether MFN applies to dispute settlement arrangements in other bilateral investment treaties — Intention of parties to extend MFN clause to other dispute settlement arrangements

Costs — Discretion of tribunal to apportion costs — Principle that losing party pays — Considerations in determining apportionment of costs

Foreign investment — NAFTA, Chapter 14 — Financial services — Relationship between Chapter 11 and Chapter 14 of NAFTA

State responsibility — Attribution — Nature of body established for company's financial restructuring — Whether informal recommendations of working group could be attributed to host State — Whether investor justified in relying on informal recommendations of working group

Measures — Exceptions to NAFTA obligations — NAFTA, Article 1410 — What constitutes “reasonable measures for prudential reasons” — Whether measures with discriminatory effect permitted — Whether Article 1410 a self-judging provision

Expropriation — Determination of meaning of expropriation — NAFTA, Article 1131(1) — Tribunal to rely on NAFTA and international law — Whether tribunal permitted to rely on international case law

Expropriation — Loss of investment due to risk not expropriation — Bilateral investment treaties not insurance against investment risk — Discriminatory treatment not tantamount to expropriation — Whether host State's failure to conclude agreement constitutes expropriation

Costs — Apportionment of costs — Respectable claims on the merits to be considered in apportionment of costs

Foreign investment — Contract claims as opposed to treaty claims — Whether violation of contract is violation of international law — Responsibility of host State for contracts concluded by State-owned entity

Foreign investment — Definition of investment — Claims to money as investments under the BIT — Whether contractual rights may constitute an investment — Combined effect of contracts leading to investment — Whether claims from commercial activities may constitute an investment — Whether assets need to be “invested” to constitute investment

Foreign investment — Requirement that investments be made in accordance with laws of host State — Whether investments need to be registered — Legality of investment as primary criterion for assessment of compliance with laws of host State

Jurisdiction — Jurisdiction ratione materiae — ICSID Convention, Article 25 — BIT as only source for jurisdiction considerations in UNCITRAL arbitration

Jurisdiction — Jurisdiction ratione personae — Changes in identity of States — Jurisdiction to be determined as of date of initiation of dispute — Whether jurisdiction over non-party to BIT exists — Distinction between jurisdiction and responsibility over acts of constituent unit

Jurisdiction — Requirement to state prima facie case — Distinction between jurisdiction and merits phase of proceedings

Jurisdiction — Exhaustion of local remedies — Clause in BIT on choice between domestic courts and international arbitration — Exhaustion of local remedies not a precondition to international arbitration — Policy reasons for granting direct access to international arbitration

State responsibility — Responsibility for acts of constituent units of host State — ILC Draft Articles on State Responsibility, Article 4 — Whether State responsible for acts of private parties