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

Section 1—Pre-filing assessment (claimant)

Do this before serving anything.

  • Every applicable instrument identified: bilateral investment treaties, multilateral agreements, trade agreement investment chapters
  • Each confirmed currently in force; any termination checked for a sunset clause
  • Nationality established under the treaty's test
  • Substance in the state of incorporation assessed—office, employees, board meetings, decisions, tax residence, genuine group role
  • Denial of benefits clause identified and the exposure assessed
  • Protected investment under the treaty and, for ICSID, under the Convention's criteria: contribution, duration, risk
  • Legality: permits and approvals reviewed; corruption exposure assessed by the claimant's own counsel first
  • Restructuring history: was any restructuring undertaken before the dispute became foreseeable? Contemporaneous rationale documented?
  • Preconditions: cooling-off period, local litigation requirement, fork-in-the-road, time limits
  • Temporal scope: treaty in force when the measures occurred
  • ENFORCEABILITY: where are the state's commercial assets, and is there a realistic execution path?
  • Merits assessed against the specific treaty's standards, including any carve-outs
  • Quantum assessed preliminarily
  • Realistic net recovery modelled over six to eight years, after costs and enforcement discount

Section 2—Notice of dispute

  • Served on the recipient the treaty specifies
  • Claimant's identity, nationality, and the corporate chain to the investment
  • The investment: what, when, how much
  • Treaty and provisions relied on
  • Measures complained of, with dates and documents
  • Harm and its approximate value
  • Statement commencing the consultation period
  • A genuine proposal for consultation, with a date and venue
  • Relief sought
  • Not overstated—three times the realistic quantum signals posturing and reduces settlement prospects
  • Delivery documented

Section 3—Cooling-off period

  • Meeting held in person, at senior level
  • Claim presented clearly with documents
  • Quantum methodology explained
  • A face-saving resolution proposed—reinstated permit, revised terms, alternative asset—not only cash
  • No publicity
  • Full period observed and documented, since non-compliance will be raised

Section 4—Filing and tribunal

  • Request for arbitration satisfies the rules' content requirements
  • Drafted to establish nationality, investment, consent, and precondition compliance on its face
  • Arbitrator candidates researched: track record on the issues, whether they write separately, availability, independence, nationality constraints
  • Ranked list with reasoning prepared before the presidential negotiation
  • Disclosure obligations satisfied; challenge risk assessed
  • Third-party funding disclosed, if applicable

Section 5—Building the claimant's case

  • Own contemporaneous file assembled—meeting notes, correspondence with officials, records of representations
  • Witness statements taken early, while memories are fresh and witnesses available
  • Document requests drafted narrowly and specifically
  • Adverse inference arguments preserved where production is refused
  • Public sources mined: parliamentary records, regulatory filings, press, state publications
  • Quantum expert retained early, with the methodology driving the requests and witness evidence
  • Local law expert retained where the host state's law is in issue
  • Interim measures considered where the state is taking further action

Section 6—The state's defence

Jurisdictional objections—raise everything:

  • Nationality and the genuineness of the corporate chain
  • Denial of benefits—investigate substance; note that late invocation may fail
  • Whether the asset is a protected investment
  • Legality and corruption—investigate the permitting history
  • Cooling-off and local litigation compliance
  • Fork-in-the-road
  • Temporal scope
  • Abuse of process where restructuring postdated foreseeability
  • Scope of consent
  • Bifurcation sought

Merits:

  • Measure framed as general, non-discriminatory, good-faith regulation for a public purpose
  • Contemporaneous record assembled showing the measure's genesis, analysis, and even-handed application
  • Legitimate expectations attacked—demand the specific commitment
  • Police powers doctrine and any express public welfare carve-out invoked
  • MFN importation of procedure resisted; treaty checked for an express exclusion
  • Umbrella clause scope contested, including any exclusive forum clause
  • Counterclaims assessed

And:

  • Government communications coordinated in a transparent proceeding
  • Settlement assessed candidly and early, with the arithmetic presented in writing to officials

Section 7—Quantum (both sides)

  • Valuation date identified and argued
  • Methodology selected and, for a claimant, alternatives pleaded—DCF primarily, sunk costs in the alternative
  • Projections reconciled to the claimant's own contemporaneous business plans
  • Discount rate components addressed, including the country risk premium fight
  • Commodity or price assumptions supported
  • Reserve or resource estimates supported, in extractive projects
  • Causation addressed—would the investment have failed anyway?
  • Currency, interest, and compounding
  • Both sides: expert of comparable stature retained. A state that appoints a junior quantum expert loses money unnecessarily
  • Expert conferencing anticipated and prepared for

Section 8—After the award

Annulment or set-aside:

  • ICSID: the five grounds only—improper constitution, manifest excess of powers, corruption, serious departure from a fundamental procedural rule, failure to state reasons. Not an appeal
  • Non-ICSID: set-aside at the seat, and Convention grounds for resisting enforcement
  • Stay of enforcement pending annulment anticipated—eighteen months to two years

Enforcement:

  • Confirmation sought in a jurisdiction with a nexus and a favourable regime
  • Discovery in aid of execution—worldwide, from third parties including banks
  • Asset map built and maintained centrally
  • Commercial assets identified; embassy, consular, military, and central bank property recognized as immune
  • Immunity from jurisdiction and from execution treated as separate
  • Separate entity problem addressed for state-owned enterprise assets—alter ego or fraud is a difficult showing
  • Enforcement pursued in multiple jurisdictions, chosen for their immunity rules
  • Receivables owed to the state by third parties considered
  • Coordinating lead counsel appointed across jurisdictions
  • Negotiation pursued in parallel—most awards settle at a discount

Section 9—Economics and funding

  • Full cost model built: counsel, experts, tribunal, translation, annulment, enforcement
  • Realistic recovery percentage and timing modelled
  • Third-party funding assessed: terms, disclosure obligation, security for costs risk, funder's role in decisions
  • After-the-event insurance for adverse costs considered
  • Adverse costs exposure modelled
  • Honest advice given—for smaller claims against states with limited reachable assets, the economics frequently do not work

Section 10—Preventive structuring (do this years earlier)

  • Treaty network mapped for the target jurisdiction before investing
  • Holding jurisdiction chosen for its treaty, its stability, and the ability to give the entity genuine substance
  • Substance actually established: office, employees, resident director, board meetings held there, decisions taken there, tax residence
  • Structure in place before any dispute is foreseeable
  • Investment legality documented contemporaneously
  • Contract with the state includes: a stabilization clause; an arbitration clause seated outside the host state; separate waivers of immunity from jurisdiction and from execution; and a choice of law other than the host state's
  • Political risk insurance obtained—it pays without requiring enforcement against a sovereign
  • Records retained of all representations made by officials to induce the investment

Section 11—Treaty analysis worksheet

Complete for each applicable instrument, because they differ materially and templates mislead.

Question Treaty A Treaty B
In force? Terminated? Sunset clause?
Definition of "investor"—incorporation, seat, or control?
Denial of benefits clause? Its wording and timing
Definition of "investment"—breadth, and any legality requirement
Cooling-off period—length, trigger, and content requirements
Local litigation requirement? Length?
Fork in the road?
Time limit for bringing a claim
Fair and equitable treatment—autonomous or tied to the customary minimum standard?
Express statement that expectations alone do not establish breach?
Expropriation—annex or interpretation on indirect expropriation?
Public welfare carve-out? Its scope
National treatment—"like circumstances" qualifier?
MFN—does it expressly exclude dispute resolution?
Full protection and security—physical only, or legal?
Umbrella clause? Its wording
Carve-outs: taxation, prudential, national security, public health
Dispute resolution: ICSID, ICSID Additional Facility, UNCITRAL, institutional? Choice?
Transparency obligations
Consolidation mechanism?
Appellate mechanism?
Counterclaim provision?

Then choose. Where more than one treaty is available, the choice of instrument—driven by the holding structure—is one of the most consequential decisions in the case, and it must be made before the dispute arises.

Section 12—Red flags

  • Holding company formed after the state's first adverse measure
  • Holding company with no employees, no office, and no board meetings in its jurisdiction
  • Permitting history with unexplained irregularities or intermediary payments
  • Local proceedings commenced without checking the fork-in-the-road provision
  • Cooling-off period truncated or the notice served on the wrong recipient
  • A claim quantified at a multiple of anything the contemporaneous business plans contemplated
  • A state with no identifiable commercial assets outside its own territory
  • A treaty with a broad public welfare carve-out covering exactly the measure at issue
  • An MFN clause that expressly excludes dispute resolution, where the claim depends on importing procedure
  • No political risk insurance, on an investment where it was available

Related documents