In Fraport AG Frankfurt Airport Services Worldwide v Republic of Philippines, ICSID Case No. ARB/03/25, an ICSID tribunal has decided that transactions which were illegal under the domestic laws of the Philippines did not qualify as "investments" under the Philippines/Germany BIT, which applies to investments "accepted in accordance with the respective laws and regulations of either Contracting State". It followed that the tribunal had no jurisdiction to determine Fraport's claims.

The tribunal held that Fraport had knowingly attempted to structure its investment in a manner which breached the Philippine Anti-Dummy Law, by means of secret shareholder agreements. Referring to the provisions of the BIT and the Instrument of Ratification, the tribunal decided that the transaction therefore did not qualify as an "investment". The relevant point at which to assess the nature of the transaction was the moment when the investment was concluded, and it was not necessary to consider the further argument that, even if lawful at the time it was concluded, any transaction would also have to be performed lawfully in order to qualify as an "investment". The tribunal indicated, however, that on the wording of this BIT such an argument would be unlikely to succeed. Note, further, the tribunal's view that, even though the Anti-Dummy Law was a criminal statute, the standard of proof on this issue was the civil "preponderance of evidence" test and not the criminal "beyond reasonable doubt" standard - though on the evidence, the higher standard would in any event have been satisfied.