Jurisdiction — Dispute arising directly out of an investment — ICSID Convention, Article 25(1) — Whether measures affect investment directly even if not specifically aimed at investment

Foreign investment — Definition of investment — Investment through acquisition of shares — Whether licences and guarantees held by consortium an investment of shareholder — Whether consortium in which shareholder has shares an investment — Full control of shareholding — Separate legal personalities and rights and obligations of investor and consortium — Whether BIT protection limited to shareholding — Whether claims invoked on behalf of consortium

Foreign investment — Definition of investment — Licences and guarantees held by an entity other than investor — Additional circumstances in considering licences and guarantees as investment

Jurisdiction — Contract claims as opposed to treaty claims — Recourse to dispute settlement a matter of investor’s right — Whether existence of contractual remedies limit such right — Effect of exclusive choice of forum clause in contract — Whether claims constitute breach of contract

Jurisdiction — Most-favoured-nation (MFN) clause — Requirement that claims be first submitted to domestic courts — Whether MFN clause applies to dispute settlement — Position of a party on the scope of MFN clause expressed in litigation and “subsequent practice” within the meaning of the Vienna Convention on the Law of Treaties

Jurisdiction — Damages, demonstration of at jurisdictional phase

Interpretation — Vienna Convention on the Law of Treaties, Article 31.3(b) — Whether pleading a certain interpretation of a treaty provision constitutes “subsequent practice”

Arbitration — Award — Energy Charter Treaty, 1994 (“Treaty”) — Foreign investment — Claimant investing in Latvia through its subsidiary — Latvian energy policy — Latvian law providing for payment of double tariff — Contract between subsidiary and State organ — Change of domestic law — Whether subsidiary having statutory and contractually established right to double tariff — Whether Latvian courts having exclusive jurisdiction over dispute — Claimant claiming for non-payment of double tariff — Claimant alleging breach of obligations under Treaty by Respondent — Whether Respondent liable under Treaty for losses or damages incurred by Claimant

Jurisdiction — Energy Charter Treaty, 1994, Article 26 — Whether Tribunal having jurisdiction to hear claims — Whether Claimant investor’s claims directly related to an investment — Whether Claimant investor having cause of action under Treaty distinct from its subsidiary — Whether Respondent in breach of obligations under Treaty — Whether obligation under Treaty or international law to exhaust local remedies before requesting arbitration

Foreign investment — Environmental character — Claimant’s claims — State responsibility — Whether Respondent liable for Claimant’s claims — Whether non-payment caused directly by State or State organ — Whether action of State organ attributable to State — Whether non-payment constituting violation of obligation under Part III of Energy Charter Treaty — Whether non-payment of double tariff causing loss or damage to Claimant’s investment

Treaties — Energy Charter Treaty, 1994 — Whether violations of obligations under Part III of Treaty — Expropriation — Treaty Article 13 — Whether discriminatory measure — Treaty Article 10(1) — Applicability — Whether any limitations on scope of treaty provisions

Expropriation — Energy Charter Treaty, Article 13 — Indirect or “creeping” expropriation — Whether “regulatory takings” amounting to expropriation or equivalent of expropriation — Whether degree of possession taking sufficient to amount to expropriation or its equivalent

Discrimination — Energy Charter Treaty, Article 10 — Whether fair and equitable treatment afforded to Claimant’s investment — Evaluation by comparing “like with like” — Whether Claimant’s investment afforded same treatment as other comparable companies — Onus on Respondent to satisfy burden of proof

Damages — Legal principles of assessment — Compensating losses for violations of Energy Charter Treaty, Article 10 — Whether Treaty Article 13(1) principles applicable — Established principles of customary international law — International Law Commission’s Draft Articles on State Responsibility, Articles 34 and 35 — Whether restitution an appropriate remedy — Assessment of losses or damages by the Claimant — Payment of interest

Damages — Calculation of damages — Quantification of damages where insufficient or limited documentation submitted — Assessment on international law principles of causation, foreseeability and reasonableness — Basis for assessment

Interest — Energy Charter Treaty, Article 26(8) — Whether Claimant can claim contractual rates of interest — Interest under Treaty awarded as compensation related to Claimant’s compensation for losses

Costs — Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, Article 41 — Payment by losing party of other party’s costs — Apportionment of costs — Whether losing party must compensate where other party’s costs excessive

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

Arbitrators — Appointment — Arbitration clause submitting disputes to icsid contained in agreements — Arbitrators to be appointed by parties — State refusing to appoint arbitrator — Procedure in event of default of party to appoint arbitrator

Jurisdiction — Of tribunal — Agreement to arbitrate — Requirement of written consent — Arbitration clause submitting disputes to icsid contained in agreements — Whether arbitration clause sufficient written consent to arbitrate

Jurisdiction — Of tribunal — Unilateral notification by State of intention to exclude type of dispute from icsid jurisdiction operative in respect of prior consent to arbitrate Whether notification

Non-appearance — Company instituting arbitration proceedings — State failing to appear before tribunal — Procedure in default of appearance

Jurisdiction — Of tribunal — Legal dispute arising from investment — Meaning of “investment”

Jurisdiction — Locus standi — United States–Moldova Bilateral Investment Protection Treaty, 1993 — Article VI(8) — Consent to arbitration — Articles I(2) and VI(3) of the BIT — Six-month waiting period — Constitution of tribunal — UNCITRAL Rules — Article 5

Expropriation — Customs and tax regime stability — Whether change in customs and tax regime tantamount to expropriation — United States–Moldova BIT

Compensation — Whether Respondent liable to pay Claimant compensation — Whether Respondent in breach of BIT — Damages — Whether Respondent liable for damages including loss of profits — Costs — Article 40 of UNCITRAL Rules

Jurisdiction — Of arbitration tribunal — Joint venture agreement between foreign company and State — Limited liability company established to carry out project — State to guarantee and authorize payment of accounts by joint venture company — Accounts rendered by foreign company not paid Whether State proper party before tribunal

Damages — For breach of joint venture agreement — Joint venture agreement between foreign company and State for cultivation and processing of hemp and construction of textile factory — Changes in economic conditions rendering project unprofitable — Foreign company insisting on alteration to programme or repudiation of position as partner and maintenance of status as supplier and technical expert only — Accounts submitted by foreign company for supply of materials to joint venture remaining unpaid Whether State in violation of agreements between the parties

Counterclaim — For breach of joint venture agreement — Joint venture agreement between foreign company and State for cultivation and processing of hemp and construction of textile factory — Changes in economic conditions rendering project unprofitable — Foreign company insisting on alteration to programme or repudiation of position as partner and maintenance of status as supplier and technical expert only — State failing to require performance with contractual obligations — Whether foreign company liable for damages for repudiation of agreements between the parties

Costs — Parties both claiming repudiation and termination of agreements between them — Neither party proving claim — Parties bearing own costs of proceedings

Interpretation — Article 25(1) of the ICSID Convention — Interpretation of “investment” — Shares as an investment — Whether minority shareholders have a different standing and an independent claim from the corporation — Whether an investment must involve control or majority ownership

Jurisdiction — Legal dispute arising directly out of an investment — Whether claims relating to general emergency economic policies directly affect the investment

Jurisdiction — Domestic dispute settlement provisions in contract — Relation between contractual claims and treaty claims — Functions of different instruments — “Fork-in-the-road” provision — Whether domestic litigation involved the same dispute and the same parties

Jurisdiction — Sources of applicable law — Whether national law or international law applies — Parties’ choice of law — Article 42 of the ICSID Convention

State responsibility — Organ of State — Type of organ immaterial for attribution — Article 4 of International Law Commission’s Articles on State Responsibility, 2002

Admissibility — Nature and subject-matter of dispute — Separate disputes or single continuous dispute — Events occurring before and after Request for Arbitration not a determinant factor — Incidental or additional claims under Article 46 of the ICSID Convention

Nationality — Individual investor — ICSID Convention, Article 25(1) and (2)(b) — Laws applicable to determining nationality — Provision for determining nationality under Bilateral Investment Treaty — Application of domestic laws of State whose nationality investor claiming — Competence of Tribunal to apply domestic laws when deciding issues of jurisdiction

Municipal law — Loss of nationality through operation of Italian domestic law — Applicable domestic laws for reacquisition of Italian nationality — Whether Claimant complying with applicable domestic laws — Interpretation of “residence” in applicable domestic laws — Whether Claimant maintaining actual habitual residence in accordance with applicable domestic laws — Whether Claimant satisfying burden of proof

Nationality — Evidence — Whether Tribunal bound by rules of evidence in Italian civil procedure — Whether official documents of State authorities conclusive proof of nationality — ICSID Arbitration Rule 34(1) — Tribunal’s competence to judge admissibility and probative value of evidence

Jurisdiction — Jurisdiction ratione materiae — For merits phase — Jurisdiction ratione temporis — Actual and constructive knowledge — Time when loss or damage incurred — Burden of proof — NAFTA, Articles 1116(2) and 1117(2)

Admissibility — Amendment of claim — UNCITRAL Arbitration Rules, Article 20

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

Jurisdiction — Mexico — Spain, Agreement on the Reciprocal Promotion and Protection of Investments (“BIT”) — Conduct pre-dating entry into force of BIT — Whether BIT applying to conduct pre-dating BIT — Most — favoured-nation clause — Application to temporal limits

Expropriation — Refusal to renew operating permit for landfill — Whether indirect expropriation — Whether breach of obligation to provide full security and protection — Whether breach of obligation to treat fairly and equitably

Damages — Calculation of damages — Fair market value — Restitution in kind — Interest — Costs

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 — Jurisdiction ratione materiae — Legal stability agreement — Scope of arbitration agreement — Interpretation in good faith, objectively fair and functional approach — Consent to ICSID jurisdiction — Nature of dispute — Establishment of prima facie case for jurisdiction — Claims under investment contract — Characterization of investment — Unity of investment — Applicable law — ICSID Convention, Articles 25(1) and 42(1)

Jurisdiction — Jurisdiction ratione personae — Claimant as national of Contracting State — Respondent as Contracting State — Claims under investment contract only — Claimant and Respondent as parties to investment contract — ICSID Convention, Article 25(1)

Jurisdiction — Jurisdiction ratione temporis — Time when actual dispute arising — Not time of dispute’s factual background — ICSID Convention, Article 25(1)

Admissibility — Standing of indirect shareholder — Effect of national court decision — Non-identity of parties, issues, cause of action, rights, obligations, relief — Decision in light of stabilized rights under investment agreement — Applicable law — ICSID Convention, Article 42(1) — Effect of tax amnesty

Arbitration — ICSID — Legal Stability Agreements — Stable interpretation — Peruvian Merger Revaluation Law — Depreciation Assessment — Merger Revaluation Assessment — Estoppel — Whether acts of entities other than national tax services binding Respondent on transactions with tax implications — Whether free remittance of capital covering tax stabilization or non-discrimination guarantee — Whether Depreciation Assessment breaching Tax Stabilization Guarantee — Whether Depreciation Assessment breaching doctrine of actos propios — Whether legal stability of laws and regulations also covering specific interpretation and application — Whether Merger Revaluation Assessment breaching Tax Stabilization Guarantee — Whether Merger Revaluation Assessment breaching doctrine of actos propios — Whether Respondent breaching non-discrimination guarantee

Damages — Applicable standard — Sustainment of damages through subsidiary’s dividends — Calculation of damages — Transparency of parties’ calculations

Costs — Allocation between parties — ICSID Convention, Article 61(2) — Parties bearing own legal costs

Admissibility — Investment procured through bribe — Whether bribe contrary to international public policy — Concept of international public policy — International consensus as to universal standards and accepted norms of conduct — Whether bribe contrary to domestic laws and public policy — ICSID Convention, Article 52 — Whether public policy can be a ground for annulment — Whether payment of bribe is a separate transaction from investment

Admissibility — Contract, avoidance of — Unequivocal and timely avoidance of contract

State responsibility — Attribution — Whether knowledge of bribe by state official attributable to the State

Applicable law — Conflicting clauses in investment agreement relating to applicable law — ICSID Convention, Article 42(1)

Jurisdiction — Bribe, effect on arbitration clause in an investment contract — Lack of evidence that bribe was to procure specific arbitration clause

Costs — Allocation of costs between parties — Why successful party should not recover costs — ICSID Arbitration Rules, Article 28(1)

Jurisdiction — Standing — Derivative claim — Minority shareholding — Controlling shareholder seeking redress before domestic courts — Whether Tribunal having jurisdiction over Claimant’s claims

Fair and equitable treatment — Article 1105 NAFTA — Whether Mexico violating minimum standard of treatment — Effect of Mexico’s maladministration of sugar programme — Whether outright and unjustified repudiation of regulations — Mexico’s failure to implement key parts of sugar programme — Attribution — Causation — Whether Mexico violating Article 1105 NAFTA

National treatment — Discrimination — Article 1102(2) NAFTA — Whether Mexico’s measures having legitimate policy goal — Whether disguised barrier to equal opportunity

Expropriation — Article 1110 NAFTA — De facto expropriation — Indirect expropriation — Taking — Value of the investment — Value of available domestic remedies — Whether Claimant’s investment expropriated contrary to Article 1110 NAFTA

Arbitration — International Centre for Settlement of Investment Disputes — Jurisdiction — Respondent not participating in composition of Tribunal — Respondent made aware of Request for Arbitration — Whether Tribunal validly constituted — Whether objection to jurisdiction could be made at hearing

Foreign investment — Indirect investment — Investment indirectly controlled by US company — Whether Tribunal having jurisdiction under Bilateral Investment Treaty

Expropriation — Measures tantamount to expropriation — Claimants physically and forcibly dispossessed of property

Damages — Calculation of damages — Recovery of expenses — Interest on expenses — Loss of profits — Whether discounted cash flow analysis appropriate where no ongoing project — Whether loss of opportunity payable on total projected investment or amount actually invested — Whether difference between total projected investment and amount actually invested should be set off against award of compensation

Interest — Rate of interest — Claim resisted on grounds which did not succeed — Whether compound interest payable — Costs