Jurisdiction – Investment – Interpretation – Whether the requirement of conformity with local laws under the BIT referred to the definition or the validity of the investment – Whether know‑how, equipment, personnel and financing constituted assets within the meaning of the BIT

Jurisdiction – Investment – ICSID Convention, Article 25 – Whether the elements of the Salini test were satisfied

Jurisdiction – Contract – Relationship between treaty claims and contract claims – Whether the essential basis of the investor’s claims was purely contractual such that the tribunal did not have jurisdiction over such claims

Jurisdiction – Standard of review – Sufficiently substantiated claims – Whether the facts alleged by the investor, if proven true, would be capable of constituting a violation of the BIT such that the tribunal had jurisdiction over the claims

Procedure – Admissibility – Parallel arbitration proceedings – Whether exercising jurisdiction would raise a conflict between the New York Convention and the ICSID Convention

Procedure – Admissibility – Abuse of process – Whether the investor’s conduct in commencing ICSID proceedings when it had previously treated its claims as purely contractual constituted an abuse of process

Procedure – Admissibility – Prerequisites to arbitration – Notice requirements – Waiting period – Whether the investor was permitted to submit the dispute to arbitration in light of the prerequisites in the BIT

Procedure – Stay of proceedings – Whether the tribunal should stay the ICSID proceedings until resolution of the contractual dispute in separate arbitration proceedings

State responsibility – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 4 – Whether a body corporate with separate legal status was an organ of the State

State responsibility – Attribution – State-owned entity – Contract – ILC Articles on State Responsibility, Article 5 – Whether a body corporate was exercising governmental authority in its contractual conduct

State responsibility – Attribution – State-owned entity – Contract – ILC Articles on State Responsibility, Article 8 – Whether actions exercised under a contract by a body corporate were on the instructions of or under the direction or control of the State

Evidence – Contract – Standard of review – Whether the tribunal needed to determine that there was a breach of the contract to decide claims under the BIT

Most-favoured-nation treatment – Interpretation – Fair and equitable treatment – Whether a standard of fair and equitable treatment could be imported through the BIT’s provision for most-favoured-nation treatment – Whether the preamble of the BIT supported that interpretation

Fair and equitable treatment – Legitimate expectation – Legal stability – Whether the investor’s legitimate expectations were frustrated as a result of political volatility

Fair and equitable treatment – Conspiracy – Evidence – Standard of proof – Whether a conspiracy would breach the standard of fair and equitable treatment – Whether the investor had adduced sufficient evidence to meet the high standard for establishing a conspiracy

Fair and equitable treatment – Coercion – Evidence – Whether the investor had adduced sufficient evidence that it had been subjected to coercion or threats by military personnel

Fair and equitable treatment – Due process – Procedural fairness – Transparency – Whether relevant procedural requirements applied to internal decision-making processes of a party to a contract

Fair and equitable treatment – Contract – Sovereign powers – Whether actions carried out by a contractual party were an exercise of sovereign powers in breach of fair and equitable treatment

National treatment – Discrimination – Intention – Whether intent to discriminate was required to find a breach of national treatment

National treatment – Contract – Comparators – Evidence – Whether the investments were in “similar situations” to other contractual arrangements

Most-favoured-nation treatment – Discrimination – Intention – Whether intent to discriminate was required to find a breach of most-favoured-nation treatment

Most-favoured-nation treatment – Contract – Comparators – Evidence – Whether the investments were in “similar situations” to other contractual arrangements

Most-favoured-nation treatment – Evidence – Burden of proof – Whether the investor’s burden could be shifted when its access to information and evidence was limited

Expropriation – Indirect expropriation – Assets capable of being expropriated – Whether interference with contractual rights could lead to expropriation under the BIT

Expropriation – Indirect expropriation – Substantial deprivation – Whether there could be substantial deprivation when the scope of the rights alleged to be expropriated was limited by the counterparty’s rights under the contract

Procedure – Provisional measures – Confidentiality – ICSID Convention, Article 47 – ICSID Arbitration Rule 39 – Whether the investor’s actions undermined the integrity of the arbitral process or aggravated the dispute between the parties – Whether the disclosure of witness statements by the State to its anti-corruption authorities violated a previous order on confidentiality of the proceedings – Whether disclosure of information regarding the case to the public aggravated the dispute between the parties

Procedure – Admissibility – Evidence – ICSID Arbitration Rule 34(7) – Authenticity – Delay – Whether the new evidence presented by the investor was admissible – Whether the new evidence was authentic – Whether admission of the new evidence violated the principles of good faith and fair dealing – Whether the request for the admission of new evidence was made without delay

State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – Whether a financial regulator was a State organ – Whether commercial entities were State organs

State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – State-owned entity – Governmental authority – Control – Whether the State-owned commercial entities were acting as agents of the State and exercising governmental authority

State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Whether the State-owned commercial entities were acting under the instruction, direction or control of the State

Fair and equitable treatment – Legitimate expectation – Corruption – Evidence – Contract – Investigation – Whether there was sufficient proof of the solicitation of a bribe by the State’s officials – Whether the investor had a right to legitimately expect that the duration of the investments would be extended – Whether the State’s challenge of the registration of the share transfer in the joint venture to the investor was in bad faith – Whether the State’s refusal to conclude further lease agreements with the joint venture was justified – Whether the organisation and conduct of auctions for leasing commercial spaces at the airport was justified – Whether the investigation by the State’s financial regulator and confiscation of revenues was proportionate, transparent and in good faith – Whether the enactment of an ordinance reorganising the duty-free regime violated the State’s obligation to accord fair and equitable treatment

Arbitrary or discriminatory measures – Whether the State applied the measures without a legitimate purpose

Expropriation – Creeping expropriation – Whether the State’s measures, either individually or in aggregate, constituted creeping expropriation

Umbrella clause – Contract – State-owned entity – Whether the State had assumed the obligations of the State-owned commercial entities under their respective contracts with the investors – Whether there was a breach of the contracts under their governing law and international law

Costs – Loser pays – Good faith – Whether the loser-pays principle is accepted in investment arbitration – Whether the dispute had been brought by the investor in good faith

Jurisdiction – Investment – ICSID Convention, Article 25(1) – Salini test – Whether economic activities in connection with a joint venture constituted an investment

Jurisdiction – Investment – Evidence – Whether there was sufficient documentary evidence that an investor had an interest in a protected investment

Jurisdiction – Investment – Legality – Contract – Municipal law – Whether the concession and agreement through which the investment was made were void ab initio under municipal law – Whether the investment was entitled to protection under the BIT and the ECT even if the concession and agreement were void ab initio under municipal law

Admissibility – Estoppel – Legality – Contract – Municipal law – Whether the State was estopped from objecting to the tribunal’s jurisdiction ratione materiae under the BIT and the ECT on the basis that the concession and agreement could be void ab initio under municipal law

Jurisdiction – Investment – Legality – Legitimate expectation – Governmental authority – Whether the State created a legitimate expectation that the investment was made in accordance with municipal law and would be entitled to treaty protection – Whether agreements were cloaked with the mantle of governmental authority

Jurisdiction – Investment – Legality – Legitimate expectation – Attribution – State-owned entity – Whether representations by State-owned enterprises could be attributed to the State – Whether ultra vires conduct by State-owned enterprises could be attributed to the State – Whether attribution was contingent on the timing of the State’s adherence to the BIT or the ECT

Jurisdiction – Investment – Provisional application – Interpretation – ECT, Article 1(6) – Meaning of “Effective Date” – Whether provisional application of the ECT was equivalent to its entry into force – Whether the ECT was provisionally applicable on the date of the Contracting Parties’ signature of the ECT

Procedure – Burden of proof – Whether the investors were subject to a special or heavy burden of proof in establishing their claims

Admissibility – Equitable prescription – Whether the claims should be time-barred due to the 10-year delay in filing the claims

State responsibility – Attribution – State-owned entity – ILC Articles on State Responsibility, Article 4 – ILC Articles on State Responsibility, Article 5 – ILC Articles on State Responsibility, Article 11 – Structural test – Functional test – Contract – Governmental authority – Whether the contractual commitments, acts and omissions of State-owned entities could be attributed to the State – Whether State-owned entities exercised or purported to exercise governmental authority

Contract – Defence – Municipal law – Scope of rights – Unconscionability – Misrepresentation – Whether the concession and agreement through which the investment was made conferred rights to future pipelines – Whether the investors’ rights were vitiated by virtue of contractual defences raised by the State – Whether the contractual defences of unconscionability, misrepresentation and lack of performance were supported by the evidence

Expropriation – Direct expropriation – Whether the State expropriated the investor’s investment through a governmental decree that deprived its joint venture vehicle of rights in an oil pipeline

Expropriation – Unlawful expropriation – ECT, Article 13(1) – Public interest – Discrimination – Due process – Compensation – Whether the expropriation was in the public interest – Whether the expropriation was carried out in a discriminatory manner – Whether the expropriation was carried out in accordance with due process – Whether the investor was paid prompt, adequate and effective compensation

Fair and equitable treatment – Legitimate expectation – Transparency – Discrimination – Whether the standard required the investor’s expectations to be based on conditions offered by or prevailing in the State at the time the investment was made – Whether the State’s compensation process violated basic requirements of consistency, transparency, even-handedness and non-discrimination

Remedies – Compensation – Quantum – Contract – Stabilisation clause – Whether contractual stabilisation clauses limited damages for expropriation – Whether it was appropriate to compensate for the increase in the value of expropriated rights between the date of the expropriation and the date of the award

Remedies – Compensation – Fair and equitable treatment – ILC Articles on State Responsibility, Article 36 – Valuation methodology – What was the standard of compensation applicable to a breach of the fair and equitable treatment standard

Costs – Third-party funding – Whether third-party funding should be taken into account in the award of costs

Annulment – Procedure – Whether annulment proceedings should be suspended pending resolution of the application for revision of an award

Jurisdiction – Investment – Legality – Fraud – Whether the investment had been procured on the basis of the investor’s fraudulent activity

Jurisdiction – State responsibility – Attribution – Whether an objection to jurisdiction for want of attribution should be addressed on the merits

State responsibility – Internationally wrongful act – ILC Articles on State Responsibility, Article 2 – Whether the State was responsible for any act that interfered with an investor’s rights regardless of who committed the impugned act

State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – De facto organ – Whether the impugned acts were performed by an organ of the State – Whether a corporate body was a de facto organ of the State

State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Puissance publique – Joint venture – Contract – Shareholder dispute – Whether a corporate body was empowered with governmental authority – Whether impugned acts of a corporate body were performed through the exercise of governmental authority – Whether contractual negotiations evidenced the exercise of governmental authority – Whether a contractual dispute over the failure to supply goods evidenced the exercise of governmental authority – Whether a dispute between shareholders of a joint venture vehicle evidenced the exercise of governmental authority

State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Effective control – Whether the State exercised general control over a corporate body – Whether the State exercised specific control over impugned acts of a corporate body

Expropriation – Harassment – Criminal investigation – Evidence – Whether there was sufficient evidence of alleged harassment by police officers – Whether a criminal investigation into an employee of the investor contributed to an alleged expropriation

Expropriation – Management rights – Joint venture – Government interference – Evidence – Whether there was evidence of instructions from the State to the investor’s joint venture partner that resulted in the expropriation of the investor’s management rights

Expropriation – Export ban – Joint venture – Government interference – Evidence – Whether there was evidence that the imposition of an export ban was controlled by the State – Whether the imposition of an export ban was motivated by the legitimate commercial fears of a joint venture partner

Umbrella clause – Contract – Joint venture – Whether the State was responsible under international law for a corporate body’s alleged breach of contract – Whether the impugned acts were the exercise of sovereign powers or purely contractual – Whether elevating contract claims to treaty claims would undermine the purpose of the investment treaty regime

Fair and equitable treatment – Legitimate expectation – Contract – Joint venture – Whether contractual rights were sufficient to ground a legitimate expectation under international law

Jurisdiction – Investment – ICSID Convention, Article 25 – Whether an investment can be composed of interrelated transactions

Admissibility – Representative claims – Whether claims may be asserted on behalf of a non-party to the proceeding

State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – Whether a State-owned real estate developer was an organ of the State – Whether a majority shareholding by the State triggered a presumption that the entity was an emanation of the State

State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – Contract – Whether a State-owned real estate developer was empowered by municipal law to exercise governmental authority – Whether an entity’s affiliation with a State organ and the enjoyment of preferential rights under municipal law implied an exercise of public authority – Whether the entity exercised puissance publique in its contractual negotiation, performance or termination

State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Effective control – Contract – Whether shared management of a real estate developer by State organs and parastatal entities could be relevant for attribution – Whether the commercial soundness of a decision was relevant to attribution – Whether contractual termination was an expression of sovereign power

Jurisdiction – Contract – Whether claims arising out of a contractual termination may constitute treaty claims

Fair and equitable treatment – Interpretation – Legitimate expectation – Legal stability – Contract – Whether standard required proactive protection of legal stability and predictability – Whether any precontractual representations provided the basis for legitimate expectations regarding zoning – Whether the decisions of a State-owned real estate developer not to grant further extensions and ultimately to terminate a contract were a breach of fair and equitable treatment

Expropriation – Contract – Whether a recommendation by a State organ entity to terminate a contract meant that the termination was an improper exercise of sovereign power

Full protection and security – Interpretation – Contract – Police – Whether the standard of full protection and security imposed an obligation of strict liability – Whether the involvement of police forces in the termination of a contract implied a breach of full protection and security

Umbrella clause – Domestic legislation – Whether a claim under the domestic investment legislation of the host State could be elevated to a breach of international law

Investment promotion – Interpretation – Whether a failure to promote and protect investments constituted a discrete breach of the BIT

Costs – Costs follow the event – Whether the unsuccessful party should bear the arbitration costs

Annulment – Serious departure from a fundamental rule of procedure – ICSID Convention, Article 52(1)(d) – Interpretation – Right to a fair trial – VCLT, Article 31(3)(c) – Human rights – Whether human rights instruments were relevant to the interpretation of the concept of a fundamental rule of procedure

Annulment – Serious departure from a fundamental rule of procedure – ICSID Convention, Article 52(1)(d) – Attribution – Evidence – Whether a tribunal disregarded critical evidence relevant to attribution

Annulment – Manifest excess of powers – ICSID Convention, Article 52(1)(b) – Jurisdiction – Attribution – Whether a tribunal’s determination on the merits despite lack of jurisdiction for want of attribution was a manifest excess of powers

Annulment – Failure to state reasons – ICSID Convention, Article 52(1)(e) – Attribution – ILC Articles on State Responsibility, Article 8 – Whether a tribunal failed to state reasons for concluding that a State-owned real estate developer was acting under the instruction or control of the State

Jurisdiction – Foreign investor – Investment – NAFTA, Article 1116 – Whether a foreign investor met the jurisdiction requirements set forth in NAFTA – Whether claims based on a causal link between the challenged measures and the investment were sufficient for a tribunal to have jurisdiction under NAFTA Article 1116

Jurisdiction – Consultation – NAFTA, Article 1118 – Whether a foreign investor could comply with NAFTA Article 1118’s consultation requirement without substantively engaging with the State – Whether the fact that a foreign investor sought consultations with a State was sufficient to meet NAFTA Article 1118’s consultation requirement

Jurisdiction – Cooling-off period – NAFTA, Article 1120 – Whether an investor was required to observe NAFTA Article 1120’s cooling-off period – Whether every event that gave rise to a claim must have occurred before the cooling-off period – Whether the investor must have suffered damage prior to the cooling-off period

Jurisdiction – Investment – Timing – NAFTA, Article 1101 – NAFTA, Article 1116 –– Whether a tribunal had jurisdiction over claims based on investments made after the relevant measure was implemented by the State – Whether the date of an investment’s incorporation was sufficient to determine when an investment was made

State responsibility – Attribution – State enterprise – NAFTA, Article 1503(2) – Interpretation – Whether an entity established by a State should be considered an organ of the State – Whether actions by a State enterprise could be attributed to a State

Most-favoured-nation treatment – National treatment – Interpretation – NAFTA, Article 1108 – Procurement – Whether a procurement process was exempt from a State’s most-favoured-nation treatment and national treatment obligations – Whether the procurement of energy constituted a procurement process

Minimum standard of treatment – NAFTA, Article 1105 – Interpretation – Policy – Transparency – Whether a State must afford investors the minimum standard of treatment pursuant to customary international law – Whether tribunals should examine the State’s underlying policy decision when examining a State’s compliance with the minimum standard of treatment – Whether transparency was part of the minimum standard of treatment

Costs – Legal costs – Whether a party should be held responsible for its opponent’s legal costs when their good faith claims were dismissed by the tribunal

Annulment – Applicable law – Whether a court considering the vacatur or confirmation of an award should apply the law of its jurisdiction or the law of the seat of the arbitration

Annulment – Municipal law – Misconduct affecting parties’ rights – Exceeded arbitral power – Manifest disregard of the law – Interpretation – Deference – Whether a tribunal’s allegedly erroneous factual findings or legal conclusions serve as grounds for vacating its award – Whether an award should be vacated on the ground that the tribunal misinterpreted the meaning of procurement – Whether an award should be vacated on the ground that the tribunal deferred to the State’s decision-making in its renewable energy policy

Jurisdiction – Foreign investor – Investment – Contractual rights – Whether shareholders had standing to protect the contractual rights of the corporate vehicle for their investment

State responsibility – Attribution – ILC Articles on State Responsibility, Article 4 – State organ – De facto State organ – Municipal law – Whether an agricultural property agency qualified as a de jure State organ under municipal law – Whether an agricultural property agency qualified as a de facto State organ

State responsibility – Attribution – ILC Articles on State Responsibility, Article 5 – Governmental authority – Contract – Bad faith – Evidence – Whether an agricultural property agency terminating a contract constituted an exercise of governmental authority – Whether the agricultural property agency had genuine commercial concerns – Whether the contractual termination was motivated by State policy – Whether the contractual termination was motivated by a hidden political agenda – Whether there were grounds to terminate the contract – Whether the contract was terminated in bad faith

Evidence – Bad faith – Contract – Whether procedural mistakes in the termination of a contract amounted to bad faith

State responsibility – Attribution – ILC Articles on State Responsibility, Article 8 – Contract – Instructions – Whether an agricultural property agency was acting on the instructions of the State in terminating a contract

Contract – Puissance publique – Fair and equitable treatment – Expropriation – Umbrella clause – Whether treaty claims arising from contractual termination required acts performed in the exercise of puissance publique to constitute breach

Costs – UNCITRAL Rules – Agreement – Costs follow the event – Reasonable conduct – Whether a tribunal should order the successful party to pay certain costs of the arbitration because of unreasonable conduct despite prior agreement that costs follow the event – Whether each party should bear its own costs – Whether the unsuccessful party should reimburse the successful party for its advance on costs