Jurisdiction — Consent — ICSID Additional Facility — Contract — Waiver — Whether a waiver must be explicit and entered freely — Whether a waiver must be consistent with the public interest pursued by the parties to the BIT

Jurisdiction — Consent — ICSID Additional Facility — Municipal law — Whether municipal law on foreign investment contained an offer of consent to arbitration

Jurisdiction — Foreign investor — Corporate nationality — Good faith — Whether the BIT excluded claims by shell companies — Whether assuming corporate nationality for the purposes of obtaining treaty protections breached good faith requirements — Whether the claimants obtained protection after the dispute

Jurisdiction — Investment — ICSID Additional Facility — Interpretation — Whether the meaning of investment under the ICSID Convention applied in ICSID Additional Facility arbitration

Jurisdiction — Investment — Loans — ICSID Convention, Article 25 — Salini test – Whether loans qualified as protected investments

Jurisdiction — Investment — Legality — Municipal law — General principle of international law — Whether a legality requirement was implied by the BIT — Whether a legality requirement was a general principle of investment law

Jurisdiction — Domestic litigation requirement — Whether a requirement that domestic remedies be exhausted could be implied into the BIT — Whether a requirement that domestic remedies be exhausted existed as a matter of customary international law

Fair and equitable treatment — Interpretation — Minimum standard of treatment — Breach of contract — Whether the treaty standard of fair and equitable treatment required a lower threshold for breach than the customary minimum standard of treatment — Whether breach of contract may result in State responsibility for breach of fair and equitable treatment

Fair and equitable treatment — Financial institutions — Whether States were under a duty to warn investors of the condition of the financial system or of a specific bank — Whether the State acted reasonably in its regulatory supervision of financial institutions

State responsibility — Attribution — Central bank — Financial institutions — ILC Articles on State Responsibility, Article 8 — Direct control — Whether the conduct of a private financial institution was attributable to the State — Whether the supervision of a private financial institution by a central bank rendered its conduct under the direct control of the State

Fair and equitable treatment — Contract — Whether refusal by a State to reduce the workforce was a breach of contract or a breach of the standard of fair and equitable treatment — Whether a refusal by the State to allow a company to scrap obsolete machinery was a breach of contract or a breach of the standard of fair and equitable treatment — Whether the refusal by the State to approve refinancing proposals was a breach of contract or a breach of the standard of fair and equitable treatment — Whether delays associated with governmental approval of transfers of funds amounted to a breach of contract or a breach of the standard of fair and equitable treatment

Fair and equitable treatment — Labour dispute — Whether the support by the State to a labour union amounted to a breach of the standard of fair and equitable treatment — Whether the State was under an obligation to publicly support a restructuring plan to which it had agreed — Whether the refusal to approve financing proposals was a matter for the State in its capacity as shareholder or in a public capacity — Whether the State failed to maintain a stable legal and business environment

State responsibility — Attribution — Bankruptcy administrator — Whether the conduct of a bankruptcy administrator was attributable to the State

Full protection and security — Interpretation — Whether the standard of most constant protection and security was equivalent to the standard of full protection and security under international law — Whether the provision of no or inadequate police presence breached the standard — Whether claimants proved loss from breach

Most-favoured-nation treatment — Like circumstances — Whether the standard applied to investments only or also to investors — Whether investors in different industries were in like circumstances — Whether investors in like circumstances were treated more favourably

Free transfer — Whether refusal by the State to approve payments constituted a breach of the treaty standard

Expropriation — Indirect expropriation — Whether the conduct constituted a deprivation of the economic use and benefit of the investments

Expropriation — Direct expropriation — Judicial act — Whether transfer of title by a bankruptcy administrator constitutes a direct expropriation — Whether a court decision may constitute a judicial expropriation in the absence of a denial of justice

Costs — ICSID Additional Facility — Whether parties should bear their own costs when the State was successful in some jurisdictional objections and the claimants proved breach but no loss

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 — 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

Defence — Corruption — Evidence — Standard of proof — Burden of proof — Whether an allegation of corruption must be supported by clear and convincing evidence or on the ordinary balance of probabilities — Whether the burden shifted once the allegation was supported by prima facie evidence — Whether circumstantial evidence could be explained or instead shifted the burden of proof

Jurisdiction — Legality — Municipal law — Judicial act — Arbitrariness — Whether the investment was made in conformity with municipal law — Whether issues of municipal law decided in the judgment of a superior court were binding upon an international tribunal — Whether violations of municipal law by officials precluded the State relying on the judgment — Whether the judgment was arbitrary under international law — Whether the State could in an international tribunal rely on judicial findings which it was seeking to overturn

State responsibility — Attribution — State-owned entity — Contract — Whether the contractual conclusion and performance of a State-owned energy company was attributable to the State — Whether contractual disclaimers were relevant to attribution

Jurisdiction — Investment — Legality — Fraud — Contract — Municipal law — Whether the investor procured the investment through contractual promises it knew it could not perform — Whether changes made to the contract contrary to municipal law precluded jurisdiction

Jurisdiction — Investment — Contract — ICSID Convention, Article 25(1) — Salini test — Whether the contract was akin to a sale of goods or qualified as an investment — Whether the investor contributed significant capital with substantial duration, took a reasonable risk on the transaction, and contributed to the economic development of the State

Expropriation — Indirect expropriation — Contract — Judicial act — Substantial deprivation — Whether contractual rights were capable of expropriation — Whether the municipal judgment of a superior court deprived the investor of the use and enjoyment of its contractual rights

Free transfer — Physical assets — Whether the guarantee of free transfer extended from funds to include physical assets — Whether the detention of vessels fell within the scope of the State’s obligation — Whether the detention prevented the investor from selling and transferring proceeds

Remedies — Damages — Standard of compensation — Expropriation — Standard of proof — Valuation date — Valuation of contractual rights — Repairs costs — Replacement costs — Lost profits — Increased costs — Wasted costs — Whether the investor was entitled not only to losses suffered but also lost profits — Whether damages had to be proven with certainty or merely with a sufficient degree of probability — Whether ex ante or ex post valuation was the appropriate starting point — Whether the investor was entitled to recover the lost earning capacity of detained vessels — Whether the investor was entitled to recover the cost of delays to its operations in other States

Remedies — Interest — Contract — Whether interest should be charged at the contractual rate on delayed payments or borrowing costs

Jurisdiction — Counterclaim — Consent — Whether the investor consented ipso facto to counterclaims in exercising its right to arbitrate — Whether the BIT contemplated the possibility of counterclaims

Costs — ICSID Convention, Article 61(2) — Costs follow the event — Party conduct — Reasonableness of costs claimed — Whether party conduct or the reasonableness of the costs claimed weighed on the principle that costs follow the event — Whether the State failed to cooperate in good faith in the proceedings — Whether the legal expenses claimed by the investor were reasonable

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