Set 3

Question 1

In what case did the tribunal stress that not every economic loss constitutes expropriation?

Answer 1

Feldman v. Mexico (2002)

Question 2

What role does state intent play in expropriation analysis?

Answer 2

While intent is not decisive, it can support the finding of expropriation if aimed at dispossession.

Question 3

Can taxation measures amount to expropriation?

Answer 3

Yes—if they are excessive, discriminatory, or disguised takings.

As explored in Occidental v. Ecuador, 2004.

Question 4

What differentiates expropriation from normal regulation?

Answer 4

Expropriation deprives value or control; regulation adjusts rights within limits of police powers.

Question 5

What is an example of lawful direct expropriation?

Answer 5

A state nationalising an industry with due process and compensation—e.g., Libya’s oil industry in the 1970s.

Question 6

What is Article 26 of the ICSID Convention?

Answer 6

It requires written consent from both parties and acknowledges exclusivity of ICSID arbitration once consent is given.

Question 7

What is the effect of consent in a BIT?

Answer 7

It constitutes a unilateral offer to arbitrate that the investor accepts by filing a claim.

Question 8

Can states unilaterally revoke consent given in BITs?

Answer 8

No—consent is irrevocable once accepted by the investor through initiation of arbitration.

Question 9

In what case did the tribunal refuse jurisdiction due to treaty shopping?

Answer 9

Phoenix v. Czech Republic (2009)

Question 10

What procedural step may precede arbitration under many BITs?

Answer 10

A ‘cooling-off period’ (often 3–6 months) intended for amicable resolution.

Question 11

What is treaty shopping?

Answer 11

Structuring investments to gain access to more favorable BIT protection, often questioned when done opportunistically.

Question 12

What is the distinction between ‘claimant nationality’ and ‘investment origin’?

Answer 12

Nationality refers to who brings the claim; origin concerns where the funds were sourced or routed.

Question 13

What case ruled that investment nationality must reflect economic reality?

Answer 13

Tokios Tokelés v. Ukraine (2004)

Question 14

What are hybrid clauses in BITs?

Answer 14

Clauses allowing investors to choose between local courts and arbitration, possibly subject to fork-in-the-road limits.

Question 15

Can jurisdiction exist over state-controlled entities?

Answer 15

Yes—if they operate commercially and not as sovereign agents (Broches Test).

Question 16

What was clarified in Aguas del Tunari v. Bolivia (2005) about jurisdiction?

Answer 16

The tribunal upheld jurisdiction, rejecting arguments that corporate restructuring undermined jurisdiction.

Question 17

What treaty provisions often contain jurisdictional clauses?

Answer 17

Articles on dispute settlement (e.g., Article 8 UK–Ethiopia BIT), definitions, and MFN clauses.

Question 18

How does Article 1 of a BIT typically define ‘investment’?

Answer 18

Broadly, covering tangible and intangible assets, shares, claims to money, IP rights, etc.

Question 19

What is a ‘denial of justice’ claim?

Answer 19

A type of FET/MST claim based on egregious failure of the host state’s legal system to provide redress.

Question 20

What happens if a tribunal finds it lacks jurisdiction?

Answer 20

The case is dismissed without prejudice on the merits.

Question 21

In what case did a tribunal distinguish claims based on their cause of action for fork-in-the-road purposes?

Answer 21

Toto v. Lebanon (2012)

Question 22

What is the ‘triple identity’ test for fork-in-the-road?

Answer 22

It requires identity of parties, cause of action, and object of the claim.

Question 23

How can umbrella clauses affect fork-in-the-road analysis?

Answer 23

They may transform contract claims into treaty claims, complicating jurisdictional analysis.

Question 24

Why are fork-in-the-road provisions more common in older BITs?

Answer 24

To protect state sovereignty and reduce exposure to multiple international claims.

Question 25

Can treaty and contract claims proceed in parallel?

Answer 25

Yes—if they are based on distinct legal obligations and handled by separate fora (Vivendi II, 2007).

Question 26

What is meant by 'waiver clauses' in BITs?

Answer 26

Clauses requiring the investor to waive domestic remedies before proceeding to arbitration.

Question 27

What happens if an investor files in the wrong forum first?

Answer 27

The tribunal may find the claim inadmissible under fork-in-the-road doctrine.

Question 28

How do treaty drafters limit confusion around fork-in-the-road?

Answer 28

Modern treaties often clarify the scope and operation of the clause, or omit it entirely.

Question 29

How do tribunals approach ambiguous fork-in-the-road provisions?

Answer 29

With caution—applying fundamental basis or triple identity tests to preserve investor rights.

Question 30

Can investors avoid fork-in-the-road clauses by characterising claims differently?

Answer 30

Only if the new claims have a different legal basis and do not constitute abuse of process.

Question 31

What is the key distinction between fair regulation and expropriation under international law?

Answer 31

Fair regulation is non-compensable if it’s for a public purpose, non-discriminatory, and proportionate; expropriation requires compensation if it causes substantial deprivation.

Question 32

What was the main holding in Waste Management v. Mexico (2004) regarding FET?

Answer 32

The tribunal stated that FET includes due process, transparency, and good faith conduct from host states, overlapping with expropriation concerns.

Question 33

What is 'regulatory chill' in the context of creeping expropriation?

Answer 33

A situation where states avoid necessary regulation (e.g., environmental laws) to prevent triggering treaty liability from foreign investors.

Question 34

What does the 'autonomy of international law' principle mean for jurisdiction?

Answer 34

It affirms that international law—not domestic law—governs the interpretation of jurisdiction under treaties.

Question 35

What is the effect of a denial of benefits clause on ratione personae jurisdiction?

Answer 35

It can preclude jurisdiction over investors lacking a substantial business presence in their home state, especially in shell or mailbox companies.

Question 36

What is the practical effect of a 'choice of forum' clause in investment contracts?

Answer 36

It may limit or override BIT-based arbitration routes if the contract explicitly requires domestic litigation.

Question 37

How can BIT wording influence the outcome of fork-in-the-road disputes?

Answer 37

Precise drafting leads to stricter enforcement; vague clauses invite interpretative flexibility.

Question 38

What procedural doctrine helps tribunals resolve overlapping BIT and contract claims?

Answer 38

The Vivendi doctrine: treaty and contract claims must be distinguished based on their legal basis and not just factual overlap.

Question 39

What is the difference between arbitration clauses and submission clauses in BITs?

Answer 39

Arbitration clauses automatically allow arbitration; submission clauses require additional steps or investor consent to activate jurisdiction.

Question 40

How does international investment law balance investor rights and state sovereignty?

Answer 40

By applying principles like FET and proportionality to ensure regulatory freedom is preserved without undermining legitimate investor expectations.