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

Tool 1 — Notice of dispute

[Date] — By courier with acknowledgment and by email

To: [The recipient specified in Article [__] of the Treaty — frequently the Ministry of Foreign Affairs, not the agency that took the measure]

NOTICE OF DISPUTE UNDER ARTICLE [__] OF THE AGREEMENT BETWEEN [STATE A] AND [STATE B] FOR THE PROMOTION AND RECIPROCAL PROTECTION OF INVESTMENTS

1. The Investor. [Claimant] is a company incorporated under the laws of [State A] on [date], with its registered office and principal place of business at [address]. It is a "[national / investor]" of [State A] within Article [__]. Its corporate chain to the Investment is set out at Annex 1.

2. The Investment. Since [date], [Claimant] has held [describe: shares in the local company; the concession; the assets], representing an investment of approximately [amount]. This constitutes an "investment" within Article [__]. Details at Annex 2.

3. The Measures. [Chronologically, with dates and references to the documents at Annex 3:] (a) On [date], [the measure]; (b) On [date], [the measure]; (c) [Continuing measures, if any.]

4. Breaches. The Measures breach Articles [] (fair and equitable treatment), [] (expropriation), [] (national treatment), and [] (observance of obligations), in that: [state the case briefly and without overstatement].

5. Harm. The Measures have caused [Claimant] loss presently estimated at approximately [amount], comprising [brief description of the components].

6. Consultation. This notice is given pursuant to Article [__], and the [six]-month period for amicable settlement commences on the date of receipt. [Claimant] is prepared to meet at senior level, at a time and place convenient to [State B], and proposes a meeting during [month] in [city]. [Claimant] would welcome discussion of resolutions other than monetary compensation, including [reinstatement of the Permit / revised concession terms / an alternative arrangement].

7. Reservation. [Claimant] reserves all rights, including to submit this dispute to arbitration under Article [__] on expiry of the consultation period.

Annexes: 1. Corporate chain. 2. The Investment. 3. The Measures, with documents.

Annotations.

  • Serve on the recipient the treaty specifies. Service on the agency that took the measure is a common and consequential error.
  • Paragraph 6's proposal is the most important sentence in the document. A meaningful share of disputes settle in this window, and the resolutions that work are usually not cash — states can approve reinstating a permit far more easily than authorizing a payment to a foreign investor.
  • Do not overstate. A quantum three times the realistic figure signals posturing and reduces the prospect of settlement.
  • Retain proof of delivery and the date, because compliance with the consultation period is jurisdictional and will be challenged.

Tool 2 — Arbitrator selection framework

Complete before making an appointment, and before the presidential negotiation.

Criterion Candidate A Candidate B Candidate C
Jurisdictional approach — strict or permissive on preconditions, nationality, denial of benefits
Fair and equitable treatment — autonomous standard or tied to the customary minimum
Legitimate expectations — requires a specific commitment, or broader
Police powers / regulatory space — deference to states or not
Quantum — DCF-receptive or conservative; approach to country risk premium
Writes separately? Quality of reasoning
Availability over the next 36 months
Prior appointments by this party, this counsel, or in related cases
Disclosure and challenge risk
Nationality constraints under the rules
Language

For the president, add:

Criterion Notes
Acceptability to the other side — realistic assessment
Chairing experience and case management
Whether the party appointees can work with them
Institutional reputation for issuing awards promptly

Annotations.

  • The president matters more than either party appointment, and the negotiation over the president is where cases are substantially won and lost. Prepare a ranked list with reasoning before the negotiation opens.
  • Availability is a genuine constraint at the top of the market and is under-weighted; an arbitrator who cannot sit for eighteen months delays the case.
  • Assess challenge risk realistically. A successful challenge costs a year.
  • Record the analysis, because the client will ask why, and because the reasoning is useful for the next case.

Tool 3 — Jurisdictional objections outline (respondent)

PRELIMINARY OBJECTIONS TO JURISDICTION AND ADMISSIBILITY

I. The Claimant is not a protected investor. A. It does not satisfy the nationality test in Article [] because []. B. Denial of benefits. [State] denies the benefits of Part [] pursuant to Article [], because the Claimant (i) has no substantial business activity in [State A] — evidenced by [no employees, no premises, no board meetings, nominal turnover] — and (ii) is owned or controlled by nationals of [a third State / the Respondent].

II. There is no protected investment. A. The asset does not fall within Article [] because []. B. [For ICSID:] It does not satisfy the objective requirements of Article 25 of the Convention, lacking [contribution / duration / risk]. C. Legality. The Investment was not made "in accordance with the laws" of [State] because [__], and is therefore outside the Treaty's protection.

III. The Claimant has not satisfied the conditions of the Respondent's consent. A. The consultation period was not observed, in that []. B. The local litigation requirement in Article [] was not satisfied. C. Fork in the road. The Claimant commenced proceedings before the courts of [State] on [date] concerning the same dispute, and its election is irrevocable. D. The claim was brought outside the limitation period in Article [__].

IV. Abuse of process. The Claimant acquired its nationality by restructuring on [date], after the dispute was foreseeable, as evidenced by [__]. Jurisdiction should be declined.

V. Temporal scope. The Measures complained of predate the entry into force of the Treaty on [date].

VI. The claims fall outside the scope of consent. A. Article [] excludes [taxation / prudential measures / national security]. B. The MFN clause in Article [] does not extend to dispute resolution provisions, and the Claimant cannot import them.

RELIEF SOUGHT: that the Tribunal decline jurisdiction, or declare the claims inadmissible, and award the Respondent its costs.

Annotations.

  • Raise everything available. Most successful defences end at this stage, and an objection not raised is waived.
  • Objection I.B requires investigation, not assertion: obtain evidence of the claimant's activity in its state of incorporation.
  • Objection II.C has become central, and it requires investigating the permitting history — which may also support a domestic investigation.
  • Objection IV turns on when the dispute became foreseeable, which is earlier than when it crystallized.
  • Note on timing: some tribunals hold that a denial of benefits must be invoked before the claim is filed. Where the treaty permits, invoke it early and publicly.

Tool 4 — Application for bifurcation

APPLICATION FOR BIFURCATION

The Respondent applies for the proceedings to be bifurcated, with the Preliminary Objections determined in a separate phase before any submissions on the merits or quantum.

1. The objections are serious. [Summarize each, with the supporting evidence.]

2. Each is capable of disposing of the case in whole. [Explain: a finding on denial of benefits, on legality, or on abuse of process would end the proceedings entirely.]

3. The objections are not intertwined with the merits. The facts relevant to [nationality, substance, the restructuring chronology, and compliance with preconditions] are discrete from the facts relevant to the Measures and their effects, and can be determined on a limited record.

4. Bifurcation will produce material savings. A merits and quantum phase would require [document production of []; [] witness statements; quantum expert reports on both sides; and a hearing of [__] weeks], at a cost of approximately [amount]. The jurisdiction phase requires a fraction of that.

5. Bifurcation will not cause material delay even if the objections are rejected, because [the jurisdiction phase can be completed within [__] months, and the merits timetable would then proceed].

Relief: that the Tribunal bifurcate and fix a timetable for the jurisdictional phase.

Annotations.

  • Element 3 is the one tribunals actually decide on. An objection intertwined with the merits — for example, legality where the same facts bear on the state's conduct — will not be bifurcated.
  • Element 4 should be quantified. Tribunals respond to a concrete cost comparison.
  • A claimant opposing should argue intertwinement, delay, and that the objections are weak — and should propose that they be joined to the merits.

Tool 5 — Document request schedule

Tribunals expect the Redfern format. Requests must be narrow, specific, and justified.

No. Documents requested Relevance and materiality Objections Reply Tribunal's decision
1 Internal analyses, memoranda, and correspondence within [Ministry] concerning the drafting of [the Measure], for the period [dd/mm/yy] to [dd/mm/yy] Goes to whether the Measure was adopted in good faith for a public purpose, as the Respondent contends at [para], or was directed at the Claimant, as the Claimant contends at [para]. The Respondent's characterization can only be tested against its internal record.
2 Documents recording the scope, timetable, and findings of the environmental review commenced on [date] Goes to whether the review was a bona fide regulatory process. The Respondent has pleaded at [para] that it was; the Claimant contends the absence of any scope or findings shows otherwise.

Drafting rules:

  • Narrow the custodians, the date range, and the subject matter. "All documents relating to the Claimant" will be refused.
  • Tie each request to a specific pleaded allegation, by paragraph reference. Relevance is judged against the pleadings.
  • Explain materiality — what the documents would show and why it matters to an issue in dispute.
  • Anticipate the objections: over-breadth, privilege, confidentiality, commercial sensitivity, state secrets, and unreasonable burden.
  • Preserve the adverse inference argument where production is refused: state expressly, in the reply, what the Claimant contends the documents would show.

For a respondent state, the recurring objections are legal privilege, deliberative or state secrecy privilege under domestic law, and burden. Tribunals will require a privilege log and will not accept a blanket assertion.

Tool 6 — Quantum expert instructions

INSTRUCTIONS TO [EXPERT]

1. Your role. You are instructed to provide an independent expert opinion for the Tribunal. Your overriding duty is to the Tribunal, not to the party instructing you, and your report must state that you understand this.

2. Assumptions. You are asked to assume the following, which are matters for the Tribunal: [(a) that the Measures constituted a breach; (b) that the breach occurred on [date]; (c) [factual assumptions]]. Please identify any assumption you consider unreasonable.

3. Questions. (a) What was the fair market value of the Investment immediately before the Measures, on the assumptions above? (b) What methodology or methodologies are appropriate, and why? If you consider a discounted cash flow inappropriate, please say so and identify the appropriate alternative. (c) What is the value on each appropriate methodology? (d) What discount rate is appropriate, and how is each component derived — including any country risk premium, and whether it should exclude the risk of the Measures themselves? (e) What interest is appropriate, at what rate, from what date, and should it compound? (f) [For a respondent:] Would the Investment have generated the returns claimed absent the Measures? What other causes contributed to its performance?

4. Materials. [List, including the contemporaneous business plans, board materials, financing models, and operating data.]

5. Form. Please set out your instructions, the materials relied on, your methodology, your calculations in a form that can be reproduced, your sensitivities, and your conclusions. Please provide the model in native format.

Annotations.

  • Question (b) is the one claimants avoid asking and should not. A tribunal that rejects a DCF with no alternative before it awards very little. Instruct on alternatives, and plead them.
  • Question (d)'s country risk point is the central quantum fight, and the expert should address both positions.
  • Question (f) is the respondent's strongest and least developed line, and it should be instructed expressly.
  • Retain the expert early. The methodology drives the document requests and the witness evidence, and an expert retained after the first memorial is working with a record built without them.

Tool 7 — Asset mapping template (enforcement)

Maintain centrally, updated as discovery produces information.

Asset Jurisdiction Owner of record Commercial use? Immunity analysis Attachment route Status
Trade agency office building US [Agency] Leased commercially Likely reachable — commercial use Writ of execution Investigating
Central bank reserves US Central Bank Reserve management Immune — separate protection for central bank assets — Excluded
Oil company receivables US [State oil co] Yes Separate entity — alter ego showing required Garnishment of buyer Assessing
Aircraft [Third state] State airline Commercial Separate entity; local law more favourable Local attachment Filed
Embassy premises US State Diplomatic Immune — Excluded

Discovery targets: correspondent banks; commodity buyers and offtakers; charterers and lessees; freight forwarders; the state's disclosed financial statements; sovereign bond documentation and the waivers it contains; and public registries.

Annotations.

  • NML Capital permits worldwide discovery in aid of execution, from third parties, even as to assets that would themselves be immune. This is the creditor's most useful tool, and it should be deployed early and broadly.
  • The separate entity analysis is the recurring obstacle. State-owned enterprise assets are presumptively not the state's, and overcoming that requires showing alter ego or that respecting the form works a fraud or injustice — a difficult showing that should be assessed realistically before spending on it.
  • Enforce where the immunity rules are most favourable, not where the creditor happens to be. Jurisdictions differ materially.
  • Look for waivers. Sovereign bond documentation and commercial contracts frequently contain express waivers of immunity from execution, and a waiver in one instrument may be argued to extend.

Tool 8 — Stabilization clause (preventive)

Stabilization. If, after the date of this Agreement, any change in the laws, regulations, or fiscal regime of [State] (including any change in taxation, royalties, duties, tariffs, environmental requirements, local content requirements, or currency regulations), or any change in their interpretation or application, has a material adverse effect on the economic benefits accruing to [Investor] under this Agreement, then:

(a) [State] shall, at [Investor]'s request, promptly enter into good faith negotiations to restore [Investor] to the economic position it would have occupied but for such change;

(b) if the Parties do not agree within [90] days, the matter shall be referred to arbitration under Article [__], and the tribunal shall determine the adjustments necessary to restore [Investor]'s economic position, which may include adjustments to [tariff / royalty / tax / term]; and

(c) pending determination, [Investor] shall not be in default by reason of any inability to perform caused by the change.

This Section applies to all changes, whether of general application or specific, and whether or not discriminatory.

Annotations.

  • This is the provision that converts a weak legitimate-expectations argument into a strong one. A treaty claim asserting that an investor expected the law not to change fails; a claim asserting that the state made a specific commitment not to change it, and did, does not.
  • The economic equilibrium formulation in (a) is more achievable than a freeze on the law itself, which states will not agree.
  • "Whether of general application or specific" is essential, because states argue that a generally applicable tax change is outside a clause aimed at discriminatory measures.
  • Expect resistance, and expect to pay for it in the commercial terms. It is worth it.

Tool 9 — Immunity waivers (preventive)

Two separate waivers. A waiver of one is not a waiver of the other.

Waiver of Immunity from Jurisdiction. [State] irrevocably and unconditionally waives, to the fullest extent permitted by law, any immunity from the jurisdiction of any court or arbitral tribunal in respect of any proceeding arising out of or relating to this Agreement, including any proceeding to compel arbitration, to obtain interim relief, or to recognize, confirm, or enforce any award.

Waiver of Immunity from Execution. [State] further irrevocably and unconditionally waives, to the fullest extent permitted by law, any immunity from attachment, arrest, execution, or other legal process in respect of any of its assets, wherever situated and whether or not used for commercial purposes, in connection with the enforcement of any judgment or award arising out of or relating to this Agreement.

[State] acknowledges that these are separate and independent waivers, that the waiver of immunity from jurisdiction does not limit the waiver of immunity from execution, and that this Section is given for the benefit of [Investor] and its successors and assigns.

[Carve-out, which the State will require:] These waivers do not extend to: (a) property used for diplomatic or consular purposes; (b) military property or property of a military authority; [(c) property of the central bank held for its own account;] or (d) property forming part of the cultural heritage of [State].

Agent for service. [State] irrevocably appoints [agent] at [address] as its agent for service of process in [jurisdiction].

Annotations.

  • The separate-and-independent acknowledgment is the operative sentence, because the default rule is that waiving jurisdictional immunity says nothing about execution.
  • "Whether or not used for commercial purposes" is what makes the execution waiver worth having, since the statutory exception otherwise reaches only commercial-use property.
  • Expect the carve-outs. States will not waive as to diplomatic, military, and central bank property, and a waiver purporting to do so may be unenforceable. Accept them and take the rest.
  • The agent for service provision prevents service becoming a two-year exercise through diplomatic channels.

Tool 10 — Settlement: award on agreed terms

REQUEST FOR AN AWARD ON AGREED TERMS

The Parties, having settled this dispute on the terms of the Settlement Agreement dated [__], jointly request the Tribunal to record their settlement in the form of an award on agreed terms pursuant to [the applicable rule].

The agreed terms:

  1. [Respondent] shall pay [Claimant] [amount], in [instalments as follows / on [date]], to the account specified at Annex A.
  2. [Respondent] shall [reinstate the Permit / grant the revised concession terms at Annex B] by [date].
  3. Upon payment in full and performance of paragraph 2, the Parties mutually release all claims arising out of or relating to [the Investment / the Measures], excluding [any claim for breach of this settlement / claims of fraud].
  4. Each Party bears its own costs; the costs of the Tribunal and the Centre are borne [equally / by [Respondent]].
  5. [Confidentiality, to the extent consistent with applicable transparency requirements.]
  6. This settlement is without any admission of liability by either Party.

Annotations.

  • Request an award on agreed terms rather than merely settling. An award is enforceable under the ICSID regime or the New York Convention; a settlement agreement is an ordinary contract requiring a fresh proceeding to enforce. For an investor settling with a state that will pay in instalments over years, this distinction is the whole point.
  • Confirm who can bind the state. A settlement requiring legislative appropriation, signed by an agency, is not a settlement. Verify the authority and any approval requirement before signing.
  • Paragraph 2's non-monetary element is frequently what makes settlement possible — states approve reinstating a permit far more readily than authorizing a payment.
  • Scope the release carefully: does it cover related group entities, the underlying contract, and parallel proceedings? And confirm the tax treatment in both jurisdictions before the amount is agreed.

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