Investment Treaty Claim Checklist

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.

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

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