Bringing or Defending a Treaty Claim: A Practical Guide

Document type: Guide Practice area: Litigation — International Arbitration Jurisdiction: International Last reviewed: 5 September 2026

Part one: the claimant's side

Stage 1 — The pre-filing assessment

Before any notice is served, answer six questions honestly. A claim that fails on any of them will consume years and millions before failing.

1. Is there a treaty, and is it in force? Identify every instrument connecting the claimant's nationality to the host state — bilateral investment treaties, multilateral agreements, and trade agreement investment chapters. Confirm each is currently in force, and whether any has been terminated with a sunset clause still protecting existing investments.

2. Does the claimant qualify as an investor? Nationality under the treaty's test. And critically: does the holding company have substance in its state of incorporation? A denial of benefits clause will be invoked, and a nameplate company will lose.

3. Is there a protected investment? Under the treaty's definition and, for ICSID, under the Convention's own requirements — contribution, duration, risk.

4. Was the investment legal? Permits, approvals, and how they were obtained. The illegality and corruption defences end cases at the jurisdictional stage, and they should be assessed by the claimant's own counsel before the state's counsel assesses them.

5. What are the preconditions? Cooling-off period, local litigation requirement, fork-in-the-road, and any time limit. Compliance is jurisdictional.

6. Can an award be enforced? Where are the state's commercial assets? Is there a realistic execution path? A claim against a state with no reachable assets is an expensive declaration.

Then assess the merits and the quantum, and — this is the discipline claimants lack — the realistic recovery net of costs, funding, and the time value of money over six to eight years.

Stage 2 — The notice of dispute

Not a formality. It starts the cooling-off period, it frames the claim, and it is the moment at which settlement is most achievable.

What it should contain:

• The claimant's identity, nationality, and the corporate chain to the investment
• The investment: what, when, how much
• The treaty relied on and the provisions breached
• The measures complained of, with dates and documents
• The harm suffered, in terms of value
• A statement that the notice commences the consultation period under Article [__]
• A genuine proposal for consultation, with a proposed date and venue
• The relief sought

What it should not contain: overstatement. A notice claiming three times the realistic quantum, or alleging breaches of every provision in the treaty, signals that the claimant is posturing and makes settlement less likely.

And it should be served on the correct recipient — the treaty specifies, and it is frequently a ministry rather than the agency that took the measure.

Stage 3 — The cooling-off period

Use it. A meaningful proportion of investor-state disputes settle in this window, and the reasons are structural: the state has not yet spent on defence; the officials responsible for the measure may not yet have committed publicly; and the claim is not yet public.

How to use it well:

• Meet in person, at senior level
• Present the claim clearly and without threat, with the documents
• Explain the quantum methodology, so the state's advisers can assess it
• Propose a resolution that lets the state save face — a reinstated permit, a negotiated tariff, a renewed concession on adjusted terms — rather than only a cash payment. States find it far easier to fix the underlying measure than to authorize a payment to a foreign investor.
• Do not leak. Publicity hardens positions.

Document the period's observance. If the case proceeds, the state will argue non-compliance, and a record of the notice, the proposals, and the meetings is the answer.

Stage 4 — Filing and constituting the tribunal

The request for arbitration must satisfy the applicable rules' content requirements and should be drafted with the jurisdictional objections in mind — establishing nationality, investment, consent, and compliance with preconditions on its face.

Arbitrator selection is the single most consequential decision in the case.

What to consider for the party-appointed arbitrator:

• Track record on the issues the case turns on — jurisdictional strictness, the fair and equitable treatment standard, the police powers doctrine, quantum methodology
• Whether they write separately and whether their reasoning is respected
• Availability, which is a real constraint at the top of the market
• Independence and disclosure, since challenges are common and a successful challenge costs a year
• Nationality, where the rules constrain it

The president matters more than either party appointment, and the negotiation over the presiding arbitrator is where cases are substantially won and lost. Prepare a ranked list, with reasoning, before the negotiation begins.

Stage 5 — Building the case

The evidentiary problem for a claimant is that the state controls the documents. Its internal deliberations, the genesis of the measure, and any evidence of improper motive are in its files.

The responses:

• Document requests, under the applicable rules on taking evidence, framed narrowly enough to be granted and specifically enough to be useful
• Adverse inferences where production is refused
• Contemporaneous documents from the claimant's own files, which are frequently more probative than anything the state will produce — meeting notes, correspondence with officials, records of representations made
• Witness statements from those who dealt with the state, prepared early while memories are fresh and while the witnesses are still available
• Public sources: parliamentary records, regulatory filings, press, and the state's own publications

The quantum case must be built in parallel, not afterwards. Retain the valuation expert early; the methodology drives the document requests and the witness evidence.

Part two: the state's side

Stage 1 — Assess before responding

On receipt of a notice of dispute, the state should: identify every jurisdictional objection available; assess the merits candidly; obtain a preliminary quantum view; and — the step most often skipped — consider whether settlement in the cooling-off period is better than the alternative.

The obstacle to early settlement is political, not legal, and counsel's job includes explaining that the alternative is a larger payment later, publicly, following an adverse award.

Stage 2 — Jurisdictional objections

Most successful defences end here. Raise everything available:

• Nationality, and whether the corporate chain is genuine
• Denial of benefits, where the treaty provides for it — investigate the claimant's substance in its state of incorporation
• Whether the asset is a protected investment, including under the ICSID Convention's own criteria
• Legality and corruption — investigate the permitting history
• Cooling-off and local litigation compliance
• Fork-in-the-road, if the claimant commenced local proceedings
• Temporal scope
• Abuse of process, where the claimant restructured after the dispute was foreseeable
• The scope of consent in the treaty's dispute resolution clause

Seek bifurcation. A jurisdiction phase costs a fraction of a merits phase, and a state with genuine objections should not fund a merits case until they are decided. Tribunals grant bifurcation where the objections are serious and capable of disposing of the case.

Stage 3 — The merits defence

Frame the measure as regulation. General application, non-discriminatory, adopted in good faith, for a legitimate public purpose, through a proper process. Assemble the contemporaneous record showing the measure's genesis, the analysis behind it, and its application to domestic and foreign investors alike.

Attack legitimate expectations. The investor must identify a specific commitment. Was there a stabilization clause? A written assurance from an official with authority? Or is the claim that the investor expected the law not to change — which is not a protected expectation.

Invoke the police powers doctrine on expropriation, and any express treaty carve-out for public welfare regulation.

On MFN, resist importation of procedural provisions, and check whether the treaty expressly excludes it.

On the umbrella clause, if one exists: argue it covers only obligations assumed in a sovereign capacity, that it does not override a contractual forum selection clause, and that the claim belongs to the contract counterparty.

Stage 4 — Quantum

This is where the money is, and states under-invest in it.

• Challenge the methodology. Discounted cash flow on a project with a short operating history is speculative; the tribunal may prefer a book value or a sunk cost measure.
• Challenge the discount rate, and whether it adequately reflects country risk, project risk, and the risk of the very regulatory change complained of.
• Challenge the projections. Were they achievable? What was the operating history? What did contemporaneous documents say about expected performance?
• Challenge causation. Would the investment have failed anyway? Were there other causes — commodity prices, demand, the investor's own management?
• Challenge the valuation date and the currency.
• Retain a quantum expert of comparable stature to the claimant's. A state that spends heavily on the merits and appoints a junior expert on quantum loses money it did not need to lose.

Stage 5 — Counterclaims and the political dimension

Counterclaims — for environmental damage, tax obligations, or breach of the investor's commitments — are available under some treaties and before some tribunals. Assess whether the treaty's language supports jurisdiction.

Manage the public dimension. Modern proceedings are frequently transparent, with pleadings published and hearings open. Coordinate with government communications from the outset, and give the client realistic advice rather than the advice it wants.

Part three: after the award

Annulment or set-aside

ICSID: annulment before an ad hoc committee, on five grounds only — improper constitution, manifest excess of powers, corruption, serious departure from a fundamental rule of procedure, and failure to state reasons. This is not an appeal, and a party seeking to relitigate the merits will fail. But it stays enforcement, which is worth eighteen months to two years to a losing state.

Non-ICSID: set-aside at the seat, on the seat's grounds, and resistance to enforcement under the New York Convention's grounds.

Enforcement

The realistic sequence:

1. Confirm the award in a jurisdiction with a nexus and a favourable regime
2. Take discovery in aid of execution — worldwide, from third parties including banks, which is available against states
3. Map the state's commercial assets globally
4. Enforce in multiple jurisdictions, choosing those with the most favourable immunity rules
5. Consider attaching receivables owed to the state by third parties
6. Address the separate entity problem where the assets belong to a state-owned enterprise — alter ego or fraud is a difficult showing
7. Negotiate. Most awards against states settle at a discount, because full enforcement is slow and uncertain

Immunity from jurisdiction and immunity from execution are separate. Confirming an award does not entitle the creditor to seize any asset. Embassy, consular, military, and central bank property is protected, and execution generally reaches only property used for commercial activity in the enforcing jurisdiction.

The economics

A contested investor-state arbitration runs four to six years to award, plus annulment and enforcement. Legal and expert costs of $5 million to $15 million are ordinary for a substantial claim, and larger for a complex one. Recovery is frequently a fraction of the award, and arrives years later.

Third-party funding is common and changes the calculus: a funder bears the costs in exchange for a share of recovery, typically a multiple of its outlay or a percentage. Disclosure of funding is increasingly required, and a funded claimant may face an application for security for costs.

Political risk insurance is the alternative that claimants should have considered years earlier. A policy covering expropriation, breach of contract, and currency inconvertibility pays without requiring enforcement against a sovereign, and the insurer pursues the state through its own channels. For an investment of meaningful size in a jurisdiction with real risk, this is frequently the better answer and the treaty claim is the fallback.

Running the procedure

Investor-state arbitrations follow a recognizable procedural rhythm, and knowing it helps both sides plan.

The first procedural session, held within weeks of constitution, settles the timetable, the rules on taking evidence, the language, the place of hearings, confidentiality and transparency, and the mechanics for document production. Come prepared with a proposed timetable; the tribunal will generally adopt something close to whatever the parties can agree.

The written phase is where the case is made. Memorials are long, fully documented, and accompanied by witness statements and expert reports. Unlike common law litigation, there is no separate discovery phase followed by a trial: each memorial is a complete presentation of the case as it then stands.

• Claimant's memorial: facts, jurisdiction, liability, and quantum, with all supporting evidence
• Respondent's counter-memorial: jurisdictional objections, factual response, liability defence, and quantum
• Reply and rejoinder, addressing what the other side raised

Document production occurs between the first and second rounds, on a schedule of requests and objections — the Redfern schedule format — decided by the tribunal. Requests must be narrow, specific, and relevant; broad requests are refused, and a party that asks for everything gets nothing.

Witness evidence is presented in written statements, with cross-examination at the hearing. Statements should be drafted by the witness's own recollection and supported by documents, not by counsel's narrative — tribunals discount statements that read as advocacy.

Expert evidence on quantum, and frequently on the host state's law, on the industry, and on technical matters. Tribunals increasingly order expert conferencing — the experts meet, produce a joint statement identifying agreement and disagreement, and are examined together. Prepare for it, because an expert who cannot explain a divergence in front of the other expert loses credibility.

The hearing runs one to three weeks: opening statements, factual witnesses, experts, and closing. Transcripts are produced daily. Post-hearing briefs frequently follow, sometimes with tribunal questions.

The award typically issues six to eighteen months after the hearing. Delay at this stage is common and frustrating, and there is little either party can do about it.

Practical points that matter:

• Translation. Where documents and witnesses are in another language, translation is a major cost and a source of dispute. Agree the protocol early.
• Confidentiality and transparency. Modern treaties frequently require publication of pleadings and open hearings. Assume the case will be public, and advise the client accordingly.
• Interim measures. Available from the tribunal, and sometimes urgently before constitution, to preserve the status quo, prevent aggravation of the dispute, or preserve evidence. Where a state is taking further measures against the investment, seek them early.
• Costs. Tribunals have discretion, and awards of costs against unsuccessful parties have become more common, though full recovery is rare.

A worked sequence, from both sides

The dispute. Meridian Aggregates, a Canadian company holding its investment through a Luxembourg subsidiary, holds a mining concession in a fictional state, Aldenia. Aldenia enacts an export levy of 35% on the mineral, and separately its environmental agency suspends Meridian's operating permit pending a review that does not conclude.

Claimant's pre-filing assessment. The Luxembourg-Aldenia treaty is in force and contains fair and equitable treatment, expropriation, and an umbrella clause, with ICSID arbitration and a six-month cooling-off period. But the Luxembourg entity was formed eighteen months ago, and Meridian's counsel identifies the two risks immediately: denial of benefits, and abuse of process if the restructuring postdated the foreseeability of the dispute.

The restructuring was for tax reasons, two years before the levy, with board minutes and tax advice contemporaneously documenting the rationale. Counsel assembles that record now, because it will be the answer to the objection.

Substance. The Luxembourg entity has a part-time administrator and no employees. Counsel advises adding substance immediately — an office, a director resident there, board meetings held there — recognizing that this helps prospectively and does not cure the position at the time of the measures. This is why structuring must be done early.

The notice of dispute is served on Aldenia's Ministry of Foreign Affairs, as the treaty specifies. It describes the levy and the permit suspension, cites the treaty provisions, quantifies the harm at $340 million, and proposes consultations.

The cooling-off period. Meridian's chairman meets Aldenia's mining minister. The proposal that moves the discussion is not a payment: Meridian offers to accept a reduced levy of 15% and a revised environmental undertaking, in exchange for reinstatement of the permit. Aldenia's officials can approve that; they cannot approve a $340 million payment.

It does not settle, because the environmental agency will not reinstate. But the discussion narrows the dispute: Meridian drops the levy claim and proceeds only on the permit suspension.

Filing. ICSID request. Aldenia appoints an arbitrator known for jurisdictional strictness; Meridian appoints one known for a robust fair and equitable treatment standard; the president is agreed after four rounds.

Aldenia's objections, in a bifurcated phase: denial of benefits; abuse of process from the restructuring; and that the permit suspension is a regulatory measure outside the treaty's expropriation provision by virtue of its public welfare carve-out.

The jurisdiction award. Denial of benefits fails, narrowly, because Aldenia invoked it only after the claim was filed and the tribunal holds the invocation must be prospective. Abuse of process fails on the contemporaneous tax documentation. The public welfare argument is deferred to the merits.

The merits. Meridian's case is that the suspension was pretextual — an environmental review with no defined scope, no timetable, and no findings after three years, imposed weeks after Meridian refused a demand from a politically connected local partner. Its strongest evidence is its own file: contemporaneous notes of the meetings at which the demand was made.

Aldenia's defence is that the review was a bona fide exercise of environmental regulation. Its problem is the record: the agency's file contains no analysis, no scope document, and no explanation for the delay. The absence is the evidence.

Quantum. Meridian claims $290 million on a discounted cash flow of the concession. Aldenia's expert challenges the mineral price assumptions, the reserve estimates, and the discount rate, and argues that the project's operating history was too short to support a DCF. The tribunal awards $126 million — less than half the claim, which is typical.

Enforcement. Aldenia seeks annulment, which stays enforcement for twenty months and fails. Meridian confirms the award, takes worldwide discovery in aid of execution, and identifies commercial assets in three jurisdictions. Aldenia settles at $84 million, payable over three years, seven years after the permit was suspended.

The lesson for both sides. Meridian's claim succeeded because it had a contemporaneous record of the improper demand and of the restructuring's rationale. Aldenia's defence failed because its agency kept no record of a decision it characterized as regulatory. In investor-state arbitration, as elsewhere, the contemporaneous file decides the case — and the party that generates and keeps one wins.

Quantum in more detail

Quantum decides how much the case is worth and receives less attention than it deserves from both sides.

The valuation date. Ordinarily the date of the breach, though for an unlawful expropriation a claimant may in some circumstances claim the higher of the value at the breach and at the award — a point worth arguing where the asset's value rose afterwards.

The methodologies:

• Discounted cash flow. The claimant's preferred method, and it produces the largest numbers. It requires a going concern with a demonstrable record of profitability, and tribunals have declined to apply it to projects that had not begun operating or had operated briefly.
• Comparable transactions or companies. Useful where genuine comparables exist, which in extractive and infrastructure projects they frequently do not.
• Book value or adjusted book value. The respondent's preferred method for early-stage projects.
• Sunk costs or amounts actually invested. A floor, and the tribunal's fallback where the DCF is too speculative. A claimant with a short operating history should expect this outcome and should plead it in the alternative.
• Replacement cost, occasionally.

The contested inputs, in every case:

• Projections: what did the claimant's own contemporaneous business plans say? A claim projecting growth the internal documents never contemplated is fatally undermined.
• The discount rate: the risk-free rate, the equity risk premium, beta, and — the fight — the country risk premium. A respondent argues that the risk of the very measure complained of should be priced in; a claimant argues that pricing in the risk of the state's own unlawful conduct rewards the breach. Tribunals have gone both ways.
• Commodity or price assumptions, where relevant
• Reserve or resource estimates in extractive projects
• Causation: would the investment have failed anyway?
• Currency and interest, including whether compound interest is awarded — increasingly it is

Practical instructions:

For claimants. Retain the expert early, and let the methodology drive the document requests and witness evidence. Plead alternatives — DCF primarily, sunk costs in the alternative — because a tribunal that rejects the DCF and has no alternative before it may award far less than the floor. And reconcile the claim to the contemporaneous business plans, because the respondent will.

For respondents. Appoint an expert of comparable stature. A state that spends heavily on the merits and appoints a junior quantum expert loses money it did not need to lose. Attack the projections with the claimant's own documents, obtained in production. And develop the causation argument, which is frequently the strongest and least developed.

Funding, costs, and the decision to proceed

The economics determine whether a meritorious claim is brought, and counsel should model them explicitly before advising.

The cost structure.

Against a recovery that is frequently 30–50% of the claim, arriving six to eight years later, and then subject to enforcement discount.

Third-party funding. A funder pays the costs in exchange for a share of recovery — commonly a multiple of its outlay or a percentage, whichever is greater, and typically in the range that leaves the claimant a majority of a successful recovery but not much more than half.

What funders assess: the merits, the quantum, the enforceability against the particular state, the counsel team, and the claimant's own conduct. Enforceability is the differentiator — funders decline strong claims against states with no reachable assets.

What to expect: disclosure of the funding arrangement, which is increasingly required; a possible application for security for costs, on the argument that a funded claimant may not satisfy an adverse costs award; and funder involvement in strategic decisions, which should be governed by the funding agreement.

Costs awards. Tribunals have discretion and increasingly award costs to the successful party, though full recovery is uncommon. A claimant should model an adverse costs award, and a funded claimant should confirm whether the funding covers it.

After-the-event insurance is available and covers adverse costs, sometimes packaged with funding.

Political risk insurance, if it exists, changes everything — and if it does not, this is the moment to note that it should have been bought years earlier.

The advice to give. For a claim of $50 million or less against a state with limited reachable assets, the economics are frequently unattractive even where the merits are strong, and the honest advice is that the claim is not worth bringing on its own account — though it may be worth bringing as leverage for a negotiated resolution. For a claim of $200 million or more against a state with commercial assets, the economics work, and funding is available if the claimant does not want to carry the cost.

Parallel proceedings and related disputes

Investor-state claims rarely stand alone, and managing the surrounding proceedings is part of the work.

Local court proceedings. The investor may have challenged the measure domestically, or may be defending enforcement action by the state. Check the fork-in-the-road provision before commencing anything locally, because an election may forfeit treaty arbitration. And check whether the treaty's local litigation requirement mandates it.

Contract arbitration. Where the investment is under a concession with an arbitration clause, the investor may have both a contract claim and a treaty claim. They are different claims, with different parties, standards, and remedies — the contract claim is against the state entity under the contract's law; the treaty claim is against the state under international law. An umbrella clause may merge them, which is why the umbrella clause analysis matters.

Running both: possible, and sometimes advisable, but it creates the risk of inconsistent findings and of double recovery objections. Coordinate the pleadings, and address the relationship expressly.

Claims by other investors. Where a measure affected several investors, multiple claims may proceed before different tribunals under different treaties, producing inconsistent outcomes. There is no consolidation mechanism in most instruments. Practical responses: coordinate informally with other claimants on evidence and expert work; and consider whether an early claim's outcome will help or hurt.

Domestic criminal or regulatory investigations. A state may open an investigation into the investor, which may be a legitimate response or a pressure tactic. Assess whether the investigation supports an additional treaty claim — harassment, denial of justice, or a breach of full protection and security — and manage the evidentiary interaction carefully, since testimony in one proceeding is available in the other.

Enforcement proceedings. Once an award exists, enforcement runs simultaneously in several jurisdictions, each with its own counsel and its own timetable. Appoint a coordinating lead, and maintain a single asset map.

Insurance claims. Where political risk insurance exists, the claim under the policy and the treaty claim interact: the insurer will typically require subrogation, and the policy may condition payment on the insured pursuing or not pursuing remedies. Read the policy before filing anything.

A timeline

Total, to actual recovery: six to eight years, and the recovery is frequently a settlement at a discount rather than full payment of the award.

Quick reference

Claimant, in order: confirm the treaty is in force; confirm nationality and substance; confirm the investment is protected and was lawfully made; confirm the preconditions; and confirm an award could actually be enforced against this state. Then assess merits, quantum, and the realistic net recovery over eight years.

Serve a proper notice of dispute and use the cooling-off period — it is when settlement is most achievable, and the resolution that works is usually fixing the measure rather than paying cash.

Arbitrator selection is the most consequential decision, and the president matters most.

Build the case from your own contemporaneous file, because the state controls its own.

Retain the quantum expert early and plead alternatives, because a tribunal that rejects a discounted cash flow with nothing before it awards very little.

State, in order: raise every jurisdictional objection and seek bifurcation; frame the measure as general, non-discriminatory, good-faith regulation; attack legitimate expectations by demanding the specific commitment; and invest properly in quantum, which is where the money is.

After the award, remember that immunity from jurisdiction and immunity from execution are separate, that execution reaches only commercial property, that state-owned enterprises are separate entities, and that worldwide discovery in aid of execution is the creditor's most useful tool.

And the preventive advice, which is worth more than all of the above: structure early with genuine substance, document legality, negotiate a stabilization clause and separate immunity waivers, and buy political risk insurance — because it pays without requiring anyone to enforce anything against a sovereign.

Settlement

Most investor-state disputes that do not fail on jurisdiction end in settlement, and the settlement dynamics are unlike commercial arbitration.

When settlement happens. Three windows: the cooling-off period, before the state has spent or committed publicly; after a jurisdiction award, when the state has lost its cheapest exit; and after the award, during enforcement, when the state faces asset seizures and reputational cost.

What makes settlement difficult. The obstacle is almost always political. No official wants to authorize a payment to a foreign investor, particularly where the underlying measure was popular. Officials change, and the person who could settle today may be gone tomorrow. And a settlement is public, or becomes so.

What makes it possible:

• A resolution that is not a payment. Reinstating a permit, renewing a concession on adjusted terms, granting an alternative asset, or agreeing a revised tariff. These are approvable at official level; a cash payment frequently is not.
• Structured payment over years, which fits budget cycles.
• Offsets against amounts the investor owes the state — taxes, royalties, penalties.
• A joint statement that lets both sides describe the outcome acceptably.
• Timing around a political cycle, though counsel should be realistic that this cuts both ways.

The mechanics.

• Who can bind the state? Confirm the authority. A settlement signed by an agency head that requires legislative appropriation is not a settlement.
• Does it require approval — cabinet, legislature, an audit body?
• How is it recorded? Where the tribunal is constituted, the parties may request an award on agreed terms, which is enforceable as an award. This is materially better for the investor than a settlement contract, because it is enforceable under the Convention or the ICSID regime rather than as an ordinary contract.
• Releases, and their scope — including whether they cover related claims, other group entities, and the underlying contract.
• Tax treatment of the payment in both jurisdictions.
• Confidentiality, to the extent achievable given transparency requirements.

For the state's counsel. The advice that matters is arithmetic: what does the claim cost to defend, what is the realistic exposure, what is the probability, and what does the discount for early settlement look like against those numbers. Presenting that analysis to officials — clearly, in writing, early — is the single most useful thing a state's counsel does, because the decision is being made by people who need a defensible basis for authorizing a payment, and an honest risk assessment from counsel is that basis.

Errors that recur

Claimant side.

• Structuring after the dispute is foreseeable, which is an abuse of process and ends the claim
• A holding company with no substance, defeated by a denial of benefits clause
• Skipping or truncating the cooling-off period, which is jurisdictional
• Commencing local proceedings without checking the fork-in-the-road provision
• Overstating the notice of dispute, which makes early settlement less likely
• Filing without assessing enforceability, and winning an award against a state with no reachable assets
• Pleading only a discounted cash flow, so a tribunal that rejects it has no alternative before it
• Retaining the quantum expert late, after the document requests and witness evidence are settled
• Failing to preserve the contemporaneous record of representations and of the restructuring's rationale
• Not buying political risk insurance years earlier, when it was available and cheap

State side.

• Not raising every jurisdictional objection, or not seeking bifurcation
• Keeping no record of the decision characterized as regulatory — the absence is the evidence
• Under-investing in quantum, which is where the money is
• Deferring settlement consideration until after the political cost of an adverse award is unavoidable
• Invoking denial of benefits only after the claim is filed, which some tribunals hold is too late
• Failing to coordinate with government communications in a transparent proceeding
• Giving the client the advice it wants rather than a candid risk assessment

Both sides.

• Underestimating the timeline. Six to eight years to actual recovery is normal.
• Treating the proceeding as confidential when the applicable instrument requires transparency
• Failing to coordinate parallel proceedings — local courts, contract arbitration, criminal investigations, and enforcement in multiple jurisdictions
• Neglecting interim measures where the state is taking further action against the investment

Related documents

• Investor-state arbitration: treaty protections, jurisdiction, and the enforcement of awards against states
• Investment treaty claim checklist
• Treaty arbitration toolkit: notices of dispute, jurisdictional objections, and enforcement strategy
• International arbitration and the New York Convention: enforcing awards across borders
• Award enforcement toolkit: petitions, vacatur motions, and judgment collection