A set of new legal instruments has emerged in investment law since investment disputes arose. Arbitrators have focused on such instruments to the detriment of conservative procedural principles. The cause of action test is one principle that can be considered as unfairly forgotten or at least deprived of its bygone significance in solving jurisdictional issues.

However, arbitral tribunals considering international investment disputes can not merely ignore the cause of action test, particularly when they are facing a respondent’s arguments regarding the distinction between contractual claims and Bilateral Investment Treaty claims or their putative identity deriving from invoking other alternative dispute-resolution mechanisms. There are plenty of awards where this test is mentioned in arbitral tribunals’ conclusions on jurisdiction, but they seem to have the ambivalent character of the arbitrators’ comprehension at best or a facile solution at  worst.

This article examines various approaches to the cause of action test being applied by arbitral tribunals in investment disputes.