Navigating Investor-State Dispute Trends: Insights from ICSID's 2026-1 Caseload

Since 2010, ICSID has published its Caseload Statistics, providing a snapshot of the institution’s activity over the previous calendar year. The 2026-1 edition (reporting on the 2025 calendar year) records 63 new cases, underscoring another strong year for investment treaty arbitration. This update examines the main shifts in jurisdictional bases, sectors and outcomes. 

Jurisdictional Shifts and Geographic Focus

Bilateral investment treaties (BITs) remained investors’ primary route to ICSID arbitration, accounting for 58 percent of disputes. By contrast, the number of Energy Charter Treaty (ECT) claims has materially decreased. This decline  may partly  reflect the obstacles to bringing an intra-EU arbitration under the ECT since the CJEU’s decision in Komstroy (which extended the scope of the Achmea decision precluding intra-EU BIT-based arbitrations to intra-EU ECT-based arbitrations).[1] That said, although the EU’s and UK’s withdrawal from the ECT signals a long-term shift, withdrawal does not extinguish existing claims, and the ECT’s 20-year sunset clause means investors can still bring claims in respect of pre-withdrawal investment for some years yet. The figures may also reflect the longer-term effect of BIT terminations by certain capital-importing States (e.g., South Africa and India), as potential claims begin to fall outside of the ‘sunset’ periods in those treaties. 

Respondent states were concentrated in Sub-Saharan Africa (24 percent), South America (20 percent), and Eastern Europe & Central Asia (19 percent). Sub-Saharan Africa's rise reflects a broader structural shift: as capital continues to flow into resource-rich, fast-growing African economies, treaty exposure grows with it, for example with mining disputes (for insight, see our blog Investing in Africa).

At the country level, Ukraine and Mexico faced five new claims, which is the highest of any respondent state. Ukraine’s cases concerned asset freezes and seizures targeting businesses with ties to Russian interests. Those filings appear to form part of a broader trend. A 2025 analysis identified 24 publicly known cases directly challenging Russia-related sanctions, 13 filed in 2025, with approximately US$62 billion in known claims. The ICSID figures likely understate the trend. Russia is not a party to the ICSID Convention. Its BITs in any event provide for UNCITRAL arbitration, meaning many sanctions-related claims proceed outside the ICSID framework – as illustrated by Fridman v UK, a reported UNCITRAL case.

On the claimant side, Western European investors accounted for 44 percent of cases, followed by North America (14 percent), the Middle East & North Africa (10 percent), and South & East Asia & the Pacific (10 percent). Those figures are based on the investors' nationality or place of incorporation at the time of registration. But Western Europe’s dominance likely reflects treaty-structuring as much as the true origin of capital, particularly the use of holding companies incorporated in jurisdictions such as the Netherlands.

Sectoral Pressures and Emerging Risks

Traditional sectors dominated 2025 ICSID filings: oil, gas, and mining (45 percent), construction (16 percent), and other industries (14 percent). Mining claims alone comprised 24 percent. These sectors have traditionally been strongly represented due to their long-term, capital heavy and geopolitically exposed nature. Climate-driven regulatory changes increasingly trigger claims, particularly concerning fossil fuel phase-outs and critical mineral investments like lithium and copper. The financial sector saw some interesting cases, such as those arising from threats and filings by bondholders against Switzerland after the Credit Suisse emergency takeover which involved the writing-down of some of the bank’s bonds.

Outcomes and Damages Realities

Tribunals decided 67 percent of concluded cases; 33 percent were settled or discontinued. Tribunals upheld claims in part or in full in 53 percent of decided cases, dismissing 31 percent. Significantly, 60 percent of tribunal decisions awarded no damages. This is partly driven by the increasing use of ICSID’s early dismissal mechanism for claims found to be manifestly without legal merit (e.g., Spentech v UAE and Sulu Heirs v Spain).

When awarded, damages typically represent about a quarter of the initial claim, with the median award (including non-ICSID cases) at US$40 million, contrasting with the US$234 million average. This disparity can stem from complex damages evaluations, for example where tribunals find that only some State measures were unlawful (e.g., Kappes and KCA v Guatemala and Eco Oro v Colombia), raising complex questions of causation and loss allocation.

What This Means for Businesses

The ground beneath investment treaty arbitration continues to shift. The decline in ECT claims, the expiry of ‘sunset’ provisions in terminated BITs, and the constraints on intra-EU arbitration after Achmea and Komstroy mean that lapsing treaty protection can present a growing risk for investors to manage. At the same time, sectoral risks continue to develop—from mining and critical minerals disputes to climate-driven regulatory action in jurisdictions previously considered low-risk. For businesses in exposed sectors, the takeaway is straightforward: treaty protection should be assessed and structured before a dispute crystallises, and proactively assessed throughout the course of the investment.