Jurisdiction — Investment — Professional services — ICSID Convention, Article 25(1) — Whether legal services qualified as an investment — Whether a contribution to the economic development of the host State was required for there to be an investment

Expropriation — Measures tantamount to expropriation — Whether international law or national law was applied to determine whether an expropriation had occurred under the BIT — Whether measures resulting in the total loss of clients may constitute measures tantamount to expropriation

Remedies — Damages — Expropriation — Fair market value — Capitalised earnings approach — Whether the investor was entitled to compensation based on a projection into the future of income from the previous years — Whether the investor was entitled to compensation including projected income on accounts held outside the host State — Whether the capitalisation rate was appropriate to the economic and political circumstances of the host State — Whether the period of future compensation reflected the claimant’s inability to return to the host State

Counterclaim — Nuisance — Reputational damage — Whether the host State was entitled to reputational damages resulting from an investment treaty claim

Annulment — Stay of enforcement — ICSID Convention, Article 52(5) — Whether potential difficulties for the State in recouping the amount of the Award in case of annulment were likely — Whether other State budgetary priorities are a relevant factor in deciding whether to grant a stay — Whether the lack of urgency of recovery of the award by an investor was a relevant factor in deciding whether to grant a stay — Whether the seriousness of the grounds invoked in the annulment proceedings is a relevant factor in deciding whether to grant a stay

Annulment — Stay of enforcement — ICSID Convention, Article 52(5) — Whether the posting of a bank guarantee in the amount of the award was a condition for a stay of enforcement — Whether the principle that the State was obliged to comply with its international obligations is a sufficient basis for deciding whether to require the posting of a guarantee as a condition for a stay of enforcement — Whether the State needed to prove that the posting of a guarantee would be a significant burden to avoid being required to post a guarantee

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1)(b) — Whether the tribunal exceeded its powers in accepting jurisdiction ratione materiae over professional services — Whether the tribunal exceeded its powers by failing to apply a provision of the BIT that was not specifically adduced in the arbitration proceeding

Annulment — Investment — Professional services — ICSID Convention, Article 25(1) — Salini test — Whether the existence of a contribution to the economic development of the host State was an essential characteristic of an investment

Annulment — ICSID Convention, Article 52(1)(e) — Whether the tribunal failed to state reasons in accepting jurisdiction ratione materiae over professional services — Whether the tribunal failed to state reasons with respect to its failure to apply certain provisions of the BIT that were not adduced in the arbitration proceeding — Whether the tribunal failed to state reasons with respect to the calculation of the compensation due to the claimant

Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Whether there was an independent obligation to show that an investment satisfied the definition under Article 25 of the ICSID Convention in addition to the definition provided by the BIT

Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Whether the Salini test provided mandatory legal requirements or should be considered holistically

Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Whether there was a requirement of regularity of profit and return

Jurisdiction — Investment — Economic development — ICSID Convention, Article 25 — Whether there was regularity of profit and return — Whether the investor made contributions – Whether the contributions took place over a duration of time — Whether the investor accepted risk — Whether the investor made a significant contribution to the host State’s economic development

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1) — Jurisdiction — Interpretation — ICSID Convention, Article 25 — VCLT, Article 31 — VCLT, Article 32 — Salini test — Travaux préparatoires — Whether the preparatory works demonstrated that the drafters of the ICSID Convention left the meaning of investment for later agreement of the contracting parties — Whether elements of the Salini test were mandatory requirements of an ICSID investment — Whether a tribunal’s failure to consider the definition of investment under a BIT and thus failure to exercise jurisdiction was in manifest excess of its powers

Interpretation — Travaux préparatoires — VCLT, Article 31 — VCLT, Article 32 — Whether a term must be regarded as ambiguous or obscure before a tribunal may resort to preparatory works

Annulment — Costs — Small claims — Whether an annulment committee should depart from the usual practice of sharing equally the costs of an annulment proceeding so as not to deter small claims under the ICSID Convention

Jurisdiction — Foreign investor — NAFTA, Article 1101(a) — Interpretation — Territorial jurisdiction — Whether NAFTA protected domestic investors who made investments in their home State from measures adopted by another State — Whether there was a legally significant connection between the measures and the claimants

Interpretation — Travaux préparatoires — Jurisdiction — Investment — Foreign investor — Whether the drafters intended for NAFTA to protect domestic or only foreign investment

Jurisdiction — Investment — NAFTA, Article 1139 — Interpretation — Territorial jurisdiction — Whether a protected investment must be made in a foreign territory rather than the investor’s home State

Jurisdiction — Investment — NAFTA, Article 1139(g) — Interpretation — Other property — Water rights — Whether investment in the form of legal rights to extract water was within the definition of other property — Whether rights included water while it was in another State

Procedure — Provisional measures — Confidentiality — ICSID Convention, Article 47 — ICSID Arbitration Rule 39(1) — Whether confidentiality measures were needed to ensure orderly disposition and procedural integrity of the arbitration — Whether the parties may engage in general public discussion — Whether the parties may apply for restrictions to be lifted

Procedure — Amicus curiae — ICSID Arbitration Rule 37(2) — Public interest — Whether there was a public interest in the arbitration — Whether the non-parties’ proposed submission had reasonable potential to assist the tribunal in determining a legal or factual matter by bringing a perspective different from the parties to the dispute — Whether the non-parties would address a matter within the scope of the dispute — Whether the non-party had a significant interest in the proceeding — Whether the non-party submission would disrupt the proceedings or unfairly burden or prejudice either party to the dispute — Whether non-parties should be granted access to key arbitral documents — Whether non-parties should be permitted to attend oral hearings

Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Whether the elements of the Salini test were mandatory legal requirements — Whether the BIT contained a broad and flexible definition of investment

Jurisdiction — Consent — ICSID Convention, Article 25 — Corporate formalities — Whether the claimant was barred from proceeding with the arbitration in the absence of proof of a formal resolution approving the arbitration

Jurisdiction — Municipal law — Consent — ICSID Convention, Article 25 — Whether a tribunal may exercise jurisdiction over claims arising under domestic law calling for parties to agree an acceptable dispute resolution mechanism, but where no agreement had been reached

Jurisdiction — Municipal law — Consent — ICSID Convention, Article 25 — Whether a State’s consent to ICSID arbitration in a BIT implied consent to ICSID arbitration for claims arising under domestic law

Jurisdiction — Cooling-off period — Whether a claimant’s failure to strictly observe a BIT’s six-month cooling-off period was a bar to jurisdiction

Expropriation — Contract — Cumulative acts — Public purpose — Economic loss — Whether a party’s interest in a lease contract was an asset capable of being expropriated — Whether a State’s breach of contractual rights was relevant to the determination of expropriation claims under a BIT — Whether the cumulative effects of multiple acts can constitute an expropriation — Whether typically commercial activities can form the basis for a claim of expropriation when carried out by the State or its agencies — Whether economic loss was relevant to the question of a State’s liability for interference with an investor’s rights

Fair and equitable treatment — Expropriation — Whether conduct constituting expropriation necessarily constituted a violation of the standard of fair and equitable treatment

Fair and equitable treatment — Legitimate expectation — Whether the appointment of a non-independent regulator in violation of a legitimate expectation that regulators would be independent violated the standard of fair and equitable treatment where the breach had no negative impact on the investment

Fair and equitable treatment — Contract — State-owned entity — Change of circumstances — Whether the State’s failure to ensure that government agencies paid their water bills could be distinguished from a commercial actor’s failure to pay bills and constituted a breach of the standard of fair and equitable treatment — Whether a State-owned entity had an obligation to renegotiate contracts based on changed circumstances — What facts a claimant must prove to demonstrate change of circumstances

Arbitrary or discriminatory measures — Reasonableness — Whether the requirement that States must not impair investments through unreasonable or discriminatory measures implied the same reasonableness standard as fair and equitable treatment

Arbitrary or discriminatory measures — Political motivations — Whether public statements, withdrawal of tax exemptions and seizure of property were arbitrary and unreasonable when motivated by political considerations

Full protection and security — Physical security — Commercial and legal security — Whether the standard of full protection and security applied only to physical security or extended to commercial and legal security

Free transfer — Availability of funds — Whether a State’s actions that destroyed the value of an investment, thereby depriving an investor of funds, constituted a violation of the protection of free transfer of funds

Remedies — Damages — Whether a State caused an investor’s damages where the value of the investment was already in jeopardy prior to the challenged acts

Costs — Whether costs should be awarded to a claimant who prevailed on the merits but was unable to prove damages resulting from the challenged State conduct

Jurisdiction — Dispute — Expropriation — Whether jurisdiction under the BIT was limited to the determination of the amount or method of payment of the compensation due for expropriation — Whether the tribunal had jurisdiction to determine that an expropriation had occurred — Whether there was a dispute between the parties concerning the existence of an expropriation — Whether the claimants had to resort to diplomatic protection or municipal courts to establish that an expropriation had occurred

Most-favoured-nation treatment — Dispute — Interpretation — Whether investors could invoke the broader dispute resolution clauses of other BITs by virtue of most-favoured-nation treatment — Whether access to international arbitration fell within the scope of most-favoured-nation treatment

Interpretation — Intention — Evidence — Object and purpose — VCLT, Article 31 — Whether there was evidence that the parties to the BIT intended to exclude the determination of expropriation from jurisdiction — Whether the object and purpose of the BIT would be frustrated by excluding from jurisdiction the determination of expropriation

Jurisdiction — Foreign investor — Legal personality — Whether investment vehicles that lacked legal personality under municipal law satisfied the meaning of investor under the BIT

Jurisdiction — Investment — Depository receipts — Territory — Whether depository receipts constituted an investment under the BIT — Whether depository receipts were an investment made in the territory of the State

Admissibility — Notice — Whether the claimants failed to give adequate notice — Whether the State was barred from raising a belated objection on the adequacy of notice during the proceeding

Admissibility — Abuse of process — Third-party funding — Double recovery — Whether the claimants had engaged in an abuse of process because their claims were funded by a third party — Whether there was any risk of double recovery from arbitrations arising from the same measures

Expropriation — Taxation — Judicial act — Whether tax levies were arbitrary or discriminatory — Whether the State had prevented a company from honouring its disputed tax debt — Whether tax delinquency was an excuse for seizing assets and transferring them to State-owned entities

Remedies — Damages — Standard of compensation — Valuation date — Whether compensation should cover the claimants’ proportionate share of an expropriated entity’s market value — Whether compensation had to be assessed at the time when an expropriated entity was removed from the register of companies or at an earlier date — Whether the value of the investment could be determined by the price of shares as they would have been traded on the stock market — Whether the date proposed by the claimants as the date of the last reliable stock price was acceptable — Whether a reduction was warranted because the claimants had speculated in distressed stock

Costs — Third-party funding — Whether the allocation of costs was affected by the claimants’ funding by a third party — Whether the State’s failure to make advance payments affected the allocation of costs

Procedure — Provisional measures — ICSID Convention, Article 47 — ICSID Arbitration Rule 39 — Whether the tribunal had authority to rule on provisional measures even though its jurisdiction was being challenged — Whether it was necessary and urgent to prevent the transfer of certain land and factories — Whether it was necessary and urgent to unfreeze funds in a bank account — Whether it was necessary and urgent to examine classified governmental archives

Jurisdiction — Ratione temporis — Whether the tribunal had jurisdiction over claims arising before the investment was acquired — Whether the tribunal had jurisdiction over claims arising after the investment had been sold

Jurisdiction — Investment — ICSID Convention, Article 25 — General principles of law — Good faith — Whether the Salini test should be supplemented — Whether a requirement of contribution to the State’s economy was a better requirement than contribution to the State’s development — Whether a mere intention to contribute was sufficient — Whether the contribution in money or other assets had to be significant — Whether there was a contribution of sufficient duration — Whether there was an element of risk in a modest investment — Whether there was an operation made to develop an economic activity in the host State — Whether assets were invested in accordance with municipal law — Whether the investment was made in good faith — Whether the timing of the dispute indicated the investment was made in good faith — Whether the substance of the investment indicated it was made in good faith

Applicable law — General principles of law — Good faith — Whether a general principle of law required that an investment be made in good faith

Interpretation — Jurisdiction — Investment — Legality — Whether the BIT can expand upon the concept of investment under the ICSID Convention — Whether conformity with municipal law in making an investment was an implicit requirement under the ICSID Convention or the BIT

Costs — Abuse of process — Costs follow the event — Whether costs were to follow the event — Whether abuse of the system of investment protection was relevant to costs

Applicable — Customary international law — Interpretation — Whether the BIT contained an agreement as to applicable law — Whether the VCLT was applicable where the BIT entered into force before the State’s accession to the VCLT — Whether the VCLT codified customary international law

Interpretation — Customary international law — VCLT, Article 31 — VCLT, Article 32 — Whether the list of investments under the BIT determined the existence of a protected investment — Whether the interpretation of the BIT should be guided by arbitral awards of other investment tribunals

Jurisdiction — Investment — Interpretation — Salini test — Territoriality — Whether there was an objective meaning of investment — Whether the concept of investment differed depending on whether the investor resorted to ICSID or UNCITRAL arbitration — Whether the four elements of the Salini test were mandatory legal requirements — Whether the BIT contained further limits on the scope of protected investments regarding territoriality

Jurisdiction — Investment — Contract — Sale of goods — Duration — Risk — Whether one-off transactions relating to the sale of goods satisfied the criteria of contribution, duration and risk — Whether short-term projects were deprived of their status as investments solely by virtue of their limited duration — Whether there was a difference between pure commercial risk and investment risk

Jurisdiction — Investment — Arbitral award — Whether the embodiment or crystallisation of contractual rights in the form of an arbitral award transformed the underlying transaction into an investment

Costs — Costs follow the event — Whether costs should reflect the relative success and failure in the arbitration — Whether there was a justification to shift the arbitral costs against the losing party