Arbitration — ICSID Convention — Argentina–United States Bilateral Investment Treaty, 1991 (“BIT”) — Argentina gas industry privatization in 1992 — Foreign investment — Claimants investing in Transportadora de Gas del Sur (“TGS”) — Claimants satisfying requirements of BIT — Tax assessments by Argentine provinces — Claimants instituting arbitration proceedings — Tax matters — Article XII of BIT — Whether stamp taxes on operations of TGS expropriatory and illegal — Whether violating Argentine law — Whether violating international law — Whether violating obligations under BIT — Whether tax measures tantamount to expropriation of investment — New request for arbitration — Claimants alleging certain tariff and other financial measures implemented by Argentina affecting investment and contravening BIT — New request as ancillary claim to original claim — ICSID Convention, Article 46

Jurisdiction — Whether Tribunal having jurisdiction over investors’ claim — Whether investors demonstrating prima facie that adversely affected by Argentina’s tax measures — Whether tax assessments violating rights accorded to foreign investors under BIT — Whether Tribunal having jurisdiction to consider matter under BIT — Matter before Argentine courts — Relevance — Tax assessments by Argentine provinces — Whether Argentina liable — General tax policies and arrangements of Argentina and its provinces — State sovereignty — State responsibility — Article XIII of BIT — State incurring responsibility and liability for unlawful acts of agencies and subdivisions under international law — International Law Commission’s Articles on State Responsibility

Jurisdiction — Original claim — Competence — Admissibility of claims — Applicable provisions — Whether Claimants having status of protected investor — Jus standi — Whether shareholders might claim independently from corporation concerned even if not in majority or in control of company — Definition of investment under Article I(1) of BIT — Indirect damages — Extent of consent to arbitration of host State — Whether excluding tax matters — Whether present dispute arising directly out of investment — Whether Claimants having present interest to bring action under BIT — Whether investment agreement or authorization — Claim for protection under BIT against alleged expropriation representing specific dispute — Powers of Tribunal — Injunctive relief — Whether breach of contractual rights also contravention of treaty rights — Determination at merits phase — Whether conditions for “fork in the road” principle present

Jurisdiction — Ancillary claim — Whether Claimants protected investors under BIT — Jus standi — Definition of investment under Article I(1)(a) of BIT — Whether agreement allowing locally incorporated companies having “foreign control” to accede to ICSID arbitration — ICSID Convention, Article 25(2)(b) — Distinction between treaty-based claims and contract-based claims

Interpretation — ICSID Convention — Article I(1) of BIT — Meaning of “investment” — Vienna Convention on the Law of Treaties, 1969, Article 31 — Literal and purposive construction — NAFTA, Article 1139 — Whether extending to indirect investments — Whether minority and indirect shareholders having independent right of action separate from affected local company — Decisions of ICSID tribunals not binding precedents

Interpretation — ICSID Convention — Article 25(2)(b) — Meaning of “foreign control” — Bilateral investment treaty — Whether precluding Claimant from acceding to ICSID jurisdiction

Interpretation — ICSID Convention and bilateral investment treaty — Investment agreement — Whether share transfer agreement constituting investment agreement — Indemnity clause — Investment constituting various instruments

Jurisdiction — Investment — Asset — Contractual obligation — Whether contract invalid — Whether claim having financial value — Whether well founded or legitimate expectation of performance

Jurisdiction — Treaty — Settlement of claims — Settlement of claims against party to contract — Whether settlement of treaty claim

Costs — Expenses — Arbitration costs — Where Respondent raised unsuccessful objections — Whether Claimant responsible for costs attributable to unsuccessful objections

Interpretation — Agreement of 1997 between the Swiss Confederation and the Republic of the Philippines on the Promotion and Reciprocal Protection of Investments (BIT) — Article II — Investment “in the territory” of a Contracting Party — Whether a contract for the provision of services performed mostly outside the territory of the host State constitutes an investment in its territory — SGS made an investment “in the territory” of the Philippines by providing, through an office in the Philippines, a reliable inspection certificate for customs purposes

Interpretation — BIT — Article X(2) — Obligation imposed by “umbrella clause” in respect of contractual obligations — Obligation on Philippines to pay monies owing pursuant to contract with SGS once amounts are determined

Jurisdiction — BIT — Article VIII(2) — Settlement of disputes — Whether ICSID Tribunal has jurisdiction with respect to contractual claims which do not involve a breach of substantive provisions of the BIT — Jurisdiction upheld

Jurisdiction — Exclusive jurisdiction clause — CISS Agreement, Article 12 — Whether exclusive jurisdiction clause overridden by BIT or ICSID Convention — Exclusive jurisdiction clause binding on parties — Essentially contractual claim — Proceedings stayed pending determination of amount payable under terms of CISS Agreement

Expropriation — BIT — Article VI — Whether refusal to pay monies owing amounts to expropriation of property — Mere non-payment of invoices where amount owing is in dispute does not amount to expropriation under terms of BIT

Procedure — ICSID Arbitration Rules, Article 19 — Stay of proceedings — Exclusive jurisdiction clause binding on parties and applicable to claim — Proceedings stayed pending determination of amount payable

Jurisdiction — icsid Convention — Bank guarantee for benefit of joint venture company — Loss of investment — Whether tribunal empowered to interpret scope of ongoing liability

Damages — For destruction of property — Measure of damages — Valuation of equity — Methods of assessment — Test of reasonable price which a willing investor would offer — Going concern value — Short operating history — Lack of goodwill — No reasonable anticipation of future profits

Interest — Requirement of reasonable rate of interest — Date from which interest payable

Treaties — Bilateral investment treaty — Interpretation — Renvoi technique — Most Favoured Nation/National Treatment clause — Whether rule of customary international law to pay compensation for breach of due diligence obligation incorporated into treaty

State responsibility — For destruction of property — Insurgents — Counter insurgency action by government forces — Lack of conclusive l’vidence as to party causing damage — Bilateral investment treaty — Obligation to provide “full protection and security” for foreign investment — Whether imposing standard of strict liability — Conduct of armed forces during civil disturbances — Specific treaty provision of due diligence — Whether excluding further application of due diligence — Whether excluding further application of due diligence under other provisions of treaty — Whether State has a duty to attempt peaceful removal of suspected insurgents from alien property prior to military operations

Treaties — Interpretation — icsid Convention, Article 42(1) — United Kingdom/Sri Lanka Agreement for the Promotion and Protection of Investments, 1980, Article 8(1)– Submission of dispute under treaty to icsid arbitration — Scope of obligations under treaty — applicable law in the absence of prior agreement — Whether agreement as to applicable law can be inferred from conduct of parties

Treaties — Interpretation — Principles of interpretation — Vienna Convention on the Law of Treaties, 1969, Article 31 — Natural and fair meaning Objectives and spirit — Travaux preparatoires — Principle of effectiveness Whether maxim generalia specialibus non derogant applicable — United Kingdom/Sri Lanka agreement for the Promotion and Protection of Investments, 1980

Treaties — Interpretation — United Kingdom/Sri Lanka Agreement for the Promotion and Protection of Investments, 1980 — Insurgent — “combat action” — Definition — Whether counter insurgency operation constitutes “combat action”

Arbitration — Claimants submitting Request for Arbitration — Argentina — United States Bilateral Investment Treaty, 1991 (“BIT”) — Whether Respondent breaching obligations under BIT — Additional Request for Arbitration — Relevance of Argentine domestic law — Difference between legal rights of Argentine companies and legal rights of indirect investors in those companies — Whether indirect investors having separate cause of action — Direct access to dispute settlement by investor in investor–State arbitration — Whether Tribunal having jurisdiction over Claimants’ claims

Jurisdiction — Jus standi — Status of Claimants — Whether nationals of another Contracting State — Article 25(2)(b) of ICSID Convention — Scope ratione personae — Whether Claimants having requisite standing — Claimants not directly operating investments in Argentina — Claimants acting through local Argentine companies — Whether Claimants foreign investors for purposes of ICSID Convention and Argentina–United States Bilateral Investment Treaty, 1991

Jurisdiction — Investment dispute — Article 25(1) of ICSID Convention — Whether dispute arising directly out of a foreign investment — Interpretation — Shares in Licensee constituting investment within meaning of Article I(1)(a)(ii) of Argentina–United States Bilateral Investment Treaty, 1991 — Claimants’ claims based on alleged breaches of BIT

Jurisdiction — Written consent of parties — Article 25(1) of ICSID Convention — Whether parties submitting to Centre’s jurisdiction — Argentina — United States Bilateral Investment Treaty, 1991 — Articles VII(3) and (4) — Exhaustion of local remedies

Admissibility — Additional Request for Arbitration — Article VII(3) of BIT — Article 46 of ICSID Convention — Whether separate proceeding necessary for Additional Request — Relevance of negotiations between Licensees and Respondent

Costs — Tribunal’s fees and expenses — Legal representation — Reserved for subsequent determination

Procedure — Place of arbitration — UNCITRAL Notes on Organizing Arbitral Proceedings — Suitability of law on arbitral procedure and enforcement — Availability and cost of support services — Location of subject-matter of dispute — Neutrality

Procedure — Amicus curiae petitions — UNCITRAL Arbitration Rules, Article 15(1) — Tribunal’s power to accept — UNCITRAL Arbitration Rules, Article 25(6) — Tribunal’s discretion to deal with submissions — UNCITRAL Arbitration Rules, Article 25(4) — Requirement for oral hearings to be held in camera — Confidentiality — Amicus curiae submissions permitted but petitioners not to be present at in camera oral hearings — Disclosure of arbitration materials to petitioners a matter for disputing parties not Tribunal

Interpretation — North American Free Trade Agreement, Chapter 11 — Vienna Convention on the Law of Treaties, 1969, Article 31(1) — No rule of restrictive interpretation

Procedure — Distinction between challenges to jurisdiction and challenges to admissibility — UNCITRAL Arbitration Rules, Article 21(1) — Tribunal’s power to rule on objections to jurisdiction and admissibility — No power to rule on admissibility of claim

Procedure — Challenges to jurisdiction — Standard of proof required of Claimant on allegations of fact and law at preliminary stage — Credible allegations of factual and legal basis of claim sufficient

Interpretation — NAFTA, Article 1101(1) — “Relating to” — Legally significant connection between disputed measure and investor required to establish claim

Admissibility — Energy Charter Treaty, Article 17(1) — Conditions necessary to invoke Article 17(1) — Ownership or control by a national of a Contracting Party

Admissibility — Ownership, misrepresentation of — Whether alleged misrepresentation is a question of jurisdiction or merits

Foreign investment — Misrepresentation as to identity of investors — Whether investment contrary to domestic law and international law — Obligations of investor to provide host State with information concerning the investor and investment — Whether investment made in violation of principle of good faith — Whether illegal investments protected by law

Energy Charter Treaty — Energy Charter Treaty, Article 26(6) — Applicable rules and principles of international law — Principle that nobody can benefit from his own fraud — Whether enforcement of an illegally obtained contract contrary to international public policy

Energy Charter Treaty — Scope of protection — Whether protection extends to investments made illegally — Whether protection extends to changes in the host State’s laws — Investor’s awareness of the state of the host State’s laws — Risks of investment — Energy Charter Treaty, Article 21 — Taxation excluded from scope of the Treaty

Energy Charter Treaty — Standards relating to investments — Energy Charter Treaty, Article 10(1) — Whether Article 10(1) applies to all stages of investment — Liability for past environmental damages — Fair and equitable treatment — Full protection and security — Whether failure to provide aid for environmental clean-up constitutes discrimination

Foreign investment — Actions of state-owned bank with respect to foreign investor — Whether actions taken on a commercially reasonable basis

Costs — Allocation of costs between parties — ICSID Convention, Article 61 — Tribunal’s discretion to award costs — Effect of a party’s conduct on apportionment of costs — Fraudulent conduct by a party

Arbitration — Arbitration tribunal — Tribunal constituted under North American Free Trade Agreement (NAFTA) Chapter 11 — UNCITRAL Arbitration Rules — Arbitral awards in S. D. Myers Inc. v. Government of Canada — First Partial Award on Liability — Second Partial Award on Damages — Final Award on Costs — Canada liable for breach of NAFTA obligations — Respondent awarded damages and costs — Canada applying to set aside NAFTA Chapter 11 arbitration awards

Municipal law — Application for judicial review of NAFTA Chapter 11 arbitration awards — Court’s jurisdiction for judicial review — Article 34 of Commercial Arbitration Code 1985 — Grounds for judicial review — Whether arbitral awards dealing with dispute not contemplated by NAFTA Chapter 11 — Whether arbitral awards exceeding scope of arbitration agreement in Part B of Chapter 11 — Whether arbitral awards contravening public policy of Canada — Principle of non-judicial intervention in an arbitral award within jurisdiction of Tribunal

Treaties — NAFTA — Chapter 11 — Interpretation and application — Objectives of NAFTA — Purposive interpretation — Article 2.01 of NAFTA — Vienna Convention on the Law of Treaties, 1969, Article 31 — Principles of international law — Application of NAFTA — NAFTA Chapter 11 and Chapter 12 rights and obligations — Whether mutually exclusive

Jurisdiction — Claims brought by investor — NAFTA Article 1116(1)(b) — Limitations on investor—State disputes — NAFTA Article 1502(3)(a) — Relationship between NAFTA Chapter 11 and Chapter 15 — Section A of NAFTA Chapter 11 — Claims concerning actions of monopolies

Jurisdiction — Minimum standard of treatment — NAFTA Article 1105 — Obligation to accord fair and equitable treatment — Customary international law — No rule of customary international law prohibiting anticompetitive behaviour — Uncompetitive and unfair conduct of monopoly — Government’s failure to supervise or exercise control over monopoly — Interpretation of NAFTA Free Trade Commission

Jurisdiction — National treatment — “Cultural industries” exemption — “Subsidies” exemption — Insufficient evidence to decide on jurisdiction

Jurisdiction — Minimum requirements of pleading — Essential elements of claim — Whether Amended Statement of Claim adequately giving notice to Canada of essential elements of claim — Whether enabling Canada to formulate statement of defence

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

Jurisdiction — Competence of tribunal — Tribunal’s power and obligation to determine its own competence — ICSID Convention, Article 41 — Tribunal’s implicit right to analyse relevant factual and legal matters

Jurisdiction — Jurisdiction ratione voluntatis — ICSID Convention, Article 25(1) — Consent of the parties — Tribunal’s obligation to analyse scope and extent of consent — Whether host State’s consent limited to investments made “in accordance with the law”

Jurisdiction — Competence of tribunal — Tribunal’s competence to determine legality of investment — Whether domestic court decisions on legality of investment constitute res judicata

Jurisdiction — Fraudulent conduct by investor — Whether fraudulent conduct deprives of the right to BIT claim — Whether fraud to be addressed in the jurisdiction or merits stage

Jurisdiction — Illegality of an investment as a factor in determining jurisdiction — Whether ICSID jurisdiction follows from contract for services — Whether ICSID jurisdiction follows from the BIT itself

Foreign investment — Legality of investment — Laws and principles applicable to an investment — Whether investment made in violation of the principle of good faith — Whether an investor can benefit “from his own fraud” — Whether granting protection to an illegal investment contrary to international public policy — Whether BIT protection of illegal investment would favour unlawful enrichment

Costs — Allocation of costs between parties — Effect of a party’s conduct on apportionment of costs — Conduct “beyond reproach”

Jurisdiction — Consent — Contractual submission to local jurisdiction — Whether ousting jurisdiction under bilateral investment treaty — Local jurisdiction not susceptible to prorogation whether consent given — icsid Convention, Article 25(1)

Jurisdiction — Jurisdiction ratione personae — National motorway company with majority State ownership — Whether “agency” of State — icsid Convention, Article 25(1)

Jurisdiction — Jurisdiction ratione materiae — “Investment” — Particular relevance of State law in determining existence of an investment — Dual requirements of bit and icsid Convention, Article 25(1) — Whether satisfied

Jurisdiction — Jurisdiction ratione materiae — Claim of breach of bit — Not excluded because also based on contract — Onus of proof on Claimant to establish breach of bit attributable to the State — Relation of responsibility under treaty to contractual liability

Admissibility — bit requiring notification to host State requesting amicable settlement — Notification to Minister also holding office as President of local contracting company — Whether sufficient notification

State responsibility — Organ of the State — Structural and functional criteria — Acts of a State corporation attributable to the State — Relation to contractual claim

Jurisdiction — Admissibility — Same dispute submitted to state court and to another arbitral tribunal — Same remedies sought in different fora — Whether an abuse of process

International investment law — Obligation not to expropriate unlawfully — Obligation of treatment in accordance with general principles of international law — Prohibition against arbitrary and discriminatory measures — Obligation to provide fair and equitable treatment — Obligation to provide full protection and security — Interpretation and application

Costs — Article 38 of UNCITRAL Rules — Apportionment of costs between the parties — Reasonable apportionment — Circumstances of case

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

Arbitration — International Centre for Settlement of Investment Disputes — Turkey — United States Bilateral Investment Treaty, 1985 — Jurisdiction — Investment — What constitutes an investment — Contract — Existence of contract

Jurisdiction — Investment — Nexus between investment and dispute — Interpretation of contract — Whether dispute arising directly out of investment — ICSID Convention, Article 25(1)

Jurisdiction — Consent — Scope of consent — Notification under ICSID Convention, Article 25(4) — Whether creating obligations for Contracting State

Jurisdiction — Consent — Previously agreed upon dispute settlement procedure — Requirement of exhaustion — Presence of previously agreed upon dispute settlement procedure

Parties — Standing — Interest of entities — Nexus to one another — Whether entities legally linked to Turkey for purposes of contract and Bilateral Investment Treaty

Arbitration — Award — Economic crises in Argentina — Expropriation claim — Article IV(1) of Argentina — US Bilateral Investment Treaty, 1991 (“BIT”) — Whether Respondent failing to accord Claimant fair and equitable treatment — Article II(2)(a) of the Argentina — US BIT — Whether Respondent discriminating against Claimant — Umbrella clause — Defence of necessity — Remedies — Respondent requesting continued stay of enforcement of Award — Respondent applying for annulment of Award

Expropriation — Article IV(1) of the Argentina–US BIT — Interpretation — Indirect and creeping expropriation

Fair and equitable treatment — Article II(2)(a) of the Argentina–US BIT — Customary international law — Interpretation

Discrimination — Arbitrariness — Article II(2)(b) of the Argentina–US BIT — Interpretation — Applicable standards

Treaties — Bilateral Investment Treaty — Article II(2)(c) of the Argentina–US BIT — Umbrella clause — Treaty claims — Standards of protection

State responsibility — Defence of necessity — Customary international law — International Law Commission’s Articles on State Responsibility, Article 25 — Essential interest of State — Grave and imminent peril — Alternatives available — Respondent’s contribution to crisis

Treaties — Defence of necessity — Article XI of Argentina–US BIT — Emergency clause — Essential security interest — Whether self-judging

Remedies — International law — Restitution — Compensation — Most applicable remedy — Applicable standard — Valuation method — Interest — Costs

Award — Stay of enforcement — ICSID Convention, Article 52(5) — ICSID Arbitration Rule 54 — Interpretation — Adequate assurances — Respondent applying for annulment of Award

Annulment — Grounds for annulment of Award — Manifest excess of power by arbitral tribunal — ICSID Convention, Article 25 — Argentina–US BIT, Article I(1) — Jurisdiction — Shareholder claiming for its rights in a foreign company independent from the latter’s rights — Definition of investment

Annulment — Grounds for annulment of Award — Manifest excess of power by arbitral tribunal — Failure to state reasons — Argentina–US BIT, Article II(2)(a) — Standard of fair and equitable treatment — Stable legal and business environment

Annulment — Grounds for annulment of Award — Failure to state reasons — Argentina–US BIT, Article II(2)(c) — Umbrella clause — Shareholder’s claim for its rights in a foreign company independent from the latter’s rights — Interpretation

Annulment — Grounds for annulment of Award — Manifest excess of power by arbitral tribunal — Failure to state reasons — Relationship between Article 25 of International Law Commission’s Articles on State Responsibility and Article XI of Argentina–US BIT — Necessity

Annulment — Grounds for annulment of Award — Manifest excess of power by arbitral tribunal — Failure to state reasons — Relationship between Article 27 of International Law Commission’s Articles on State Responsibility and Article XI of Argentina–US BIT — Compensation — Interpretation

Compensation — Standard of compensation — Fair market value — Discounted market value — No expropriation — Failure to state reasons