Investment Treaty Arbitration and International Law - Volume 7

Author(s):

Ian A. Laird

Borzu Sabahi

Frédéric G. Sourgens

Todd J. Weiler, MCIArb

ISBN:

978-1-937518-41-7

Page Count:

428 pages

Published:

May, 2014

Is it Time for a Regime Change? Protecting International Energy Investments against Political Risk.

The 2013 seventh annual Juris investment arbitration conference put in issue the special role of international energy projects in the development of investor-state arbitration. It is currently one of the most active sectors of investor-state arbitration. The “facts” of the energy sector therefore are particularly well-developed in international jurisprudence.
The similarities in the applicable law of investment protection between the energy sector and other sectors tend to hide from view what our panelists repeatedly uncovered: it is the facts of energy disputes that significantly set them apart. The concerns of sovereign dominion over national energy production and the protection of foreign investors in the energy sector against stranding large investments served as a key point of departure for discussions.

The four questions that the Conference addressed include:

The Energy Sector, Investment Arbitration and the ECT: Carving out a Special Regime?
Energy Contracts and BITS – Is it Fair and Equitable to be Under the Umbrella?
Mulitparty Investor Disputes in the Energy Sector – Preclusion, Consolidation or Free-For-All?
Measure by Measure? Calculating Damages in Energy Disputes

The discussion and debate that followed is provided in this book and sure to be of tremendous value to the international business lawyer, litigation specialist or trade and investment law policy expert.

PDF of Title Page and T.O.C.

Introduction
Is it Time for a Regime Change? Protecting International Energy
Investments against Political Risk
Frédéric G. Sourgens

Profiles

PART I
THE ENERGY SECTOR, INVESTMENT ARBITRATION
AND THE ECT: CARVING OUT A SPECIAL REGIME?

CHAPTER 1
The Energy Sector, Investment Arbitration, and the ECT: Carving Out a
Special Regime?
Kabir Duggal

CHAPTER 2
Controlling Access to FDI – An Alternative Approach to Energy Sector
Investment Protection
Teale E. Toweill

CHAPTER 3
The Energy Sector, Investment Arbitration and the ECT: Carving Out A
Special Regime?
Professor Alexander Bĕlohlávek
Professor Peter Cameron
Mr. John L. Gardiner
Mr. Alex Yanos

PANEL DISCUSSION

PART II
ENERGY CONTRACTS AND BITS –
IS IT FAIR AND EQUITABLE TO BE UNDER THE
UMBRELLA?

CHAPTER 4
Duplicating the Umbrella Clause? Some Thoughts on Contractual
Expectations and the Fair and Equitable Treatment Standard
Louis-Philippe Coulombe

CHAPTER 5
Understanding FET: The Case for Protecting Contract-based Legitimate
Expectations
Sabrina A. Bandali

CHAPTER 6
Energy Contracts and Bits – Is it Fair and Equitable to be Under the
Umbrella?
Ms. Claudia Frutos-Peterson
Mr. Ben Love
Mr. Kaj Hobér
Mr. Romeo Rojas

PANEL DISCUSSION

CHAPTER 7
Lunch Speaker Transcript
Mr. David R. Haigh, QC

PART III
MULTIPARTY INVESTOR DISPUTES IN THE
ENERGY SECTOR – PRECLUSION, CONSOLIDATION,
OR FREE-FOR-ALL?

CHAPTER 8
Claim Suspension and Issue Preclusion in Multiparty Investment
Disputes: The Need for Autonomous, International Principles
Sarah Farnham

CHAPTER 9
The Right To Be Heard: The Messy Business of Due Process
Teddy Baldwin

CHAPTER 10
Multiparty Investor Disputes in the Energy Sector – Preclusion,
Consolidation, or Free-for-All?
Mr. Ramunas Audzevicius
Professor George Bermann
Mr. Lee Caplan
Mr. Alexandre de Gramont
Mr. Joseph R. Profaizer

PANEL DISCUSSION

PART IV
MEASURE BY MEASURE? CALCULATING
DAMAGES IN ENERGY DISPUTES

CHAPTER 11
The Investment Agreement in Investment Arbitration: Effects on
Damages
Joshua B. Simmons

CHAPTER 12
Calculating Damages in Energy Disputes: The Restoration of
Indexing Clauses
Nicholas J. Birch

CHAPTER 13
Measure by Measure? Calculating Damages in Energy Disputes
Mr. Stephen P. Anway
Mr. Daniel Flores
Ms. Miriam K. Harwood
Mr. Howard Rosen
Mr. Wayne Wilson

PANEL DISCUSSION
TABLE OF CASES
INDEX

Editors

Ian A. Laird is a Partner in the Washington, D.C. office of Crowell &
Moring. His practice is focused in the field of international investment law
and arbitration. He is the co-founder and Editor-in-Chief of
Investmentclaims.com. He is a Lecturer-in-law at Columbia University
Law School and Co-Director of the International Investment Law Center at
the International Law Institute (ILI) in Washington, D.C.

Borzu Sabahi practices international arbitration and public international
law in Curtis, Mallet-Prevost, Colt & Mosle LLP’s Washington, D.C. office.
He is an adjunct professor of law at Georgetown and Columbia Law
Schools where he co-teaches seminars on investor-state dispute resolution
and international oil & gas development. He is Editor of Oxford’s
Investmentclaims.com and Co-Director of the International Investment
Law Center at the ILI. He has widely published on international
arbitration and regularly speaks at conferences.

Frédéric G. Sourgens is an Associate Professor of Law at Washburn
University School of Law and Managing Editor of Investmentclaims.com.
Professor Sourgens publishes widely in international and transnational
law and has served as counsel and legal expert in many international
disputes.

Todd J. Weiler is an independent counsel, arbitrator and expert consultant
on investment treaty arbitration. Highly regarded for his engaging and
creative style, Dr. Weiler is widely recognized as a leading expert on the
NAFTA and CAFTA, the history of international investment law, and on
investor-state dispute settlement generally.

Associate Editor

Kabir Duggal is an associate in the International Arbitration group of
Curtis, Mallet-Prevost, Colt and Mosle’s New York office. He has been
involved in some of the largest investor-state arbitrations. He is a
graduate of the University of Mumbai, University of Oxford (Faculty of
Law), and NYU School of Law. He is also a Lecturer-in-Law at Columbia
Law School.

Authors

Teddy Baldwin, Associate, Milbank Tweed Hadley & McCloy
Sabrina A. Bandali, Lawyer and Consultant, http://sabrinaabandali.com/
Nicholas J. Birch, Associate, Stewart and Stewart
Louis-Philippe Coulombe, Trade Law Bureau (Canada)
Kabir Duggal, Attorney, Curtis, Mallet-Prevost, Colt & Mosle LLP
Sarah Farnham, Associate, Paul Hasting
Joshua B. Simmons, Attorney-Adviser, U.S. Department of State (current
position)
Frédéric G. Sourgens, Associate Professor of Law, Washburn University
School of Law
Teale E. Toweill, Associate, Cleary Gottlieb Steen & Hamilton LLP

Faculty

Stephen P. Anway, Partner, Squire Sanders
Ramunas Audzevičius, Partner, Motieka & Audzevičius
Alexander Bělohlávek, Founder and Senior Partner of The Bělohlávek Law
Offices in Prague
George Bermann, Professor, Columbia Law School
Peter Cameron, Professor, University of Dundee
Lee Caplan, Partner, Arent Fox (current position)
Alexandre de Gramont, Partner, Weil, Gotshal & Manges
Daniel Flores, Managing Director, Econ One
Claudia Frutos-Peterson, Senior Consultant, Curtis, Mallet-Prevost, Colt &
Mosle
John L. Gardiner, Partner, Skadden, Arps, Slate, Meagher & Flom LLP
Miriam K. Harwood, Partner, Curtis, Mallet-Prevost, Colt & Mosle
Kaj Hobér, Partner, Mannheimer Swartling
Ben Love, Senior Associate, Freshfields Bruckhaus Deringer
Joseph R. Profaizer, Partner, Paul Hasting
Romeo Rojas, Associate, Burnet, Duckworth & Palmer LLP
Howard Rosen, Senior Managing Director, FTI Consulting
Wayne Wilson, Managing Director, UHY Advisors
Alex Yanos, Partner, Freshfields Bruckhaus Deringer

Moderators

Timothy G. Nelson, Partner, Skadden, Arps, Slate, Meagher & Flom LLP
Michael Nolan, Partner, Milbank, Tweed, Hadley & McCloy
Laurence Shore, Partner, Hebert Smith Freehills LLP
Matthew D. Slater, Partner, Cleary Gottlieb Steen & Hamilton,
Washington, D.C.

Speaker

David R. Haigh, QC, Partner, Burnet, Duckworth & Palmer LLP

Praise for the Investment Treaty Arbitration and International Law Series:

"This volume is not for the beginner, nor was it meant to be. It does not provide answers to the many open and difficult questions in the area of investment treaty arbitration, for the simple reason that there are none. The publication is invaluable, however, for anyone who wishes to follow and understand the developments and the debates in this field."

--Kaj Hóber, Partner, Mannheimer Swartling, Stockholm; Professor of International Law, Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP), University of Dundee.

"This is not a book for the novitiate, nor is it a ready guide-book to investment treaty arbitration; this is a thought-provoking and substantial presentation of ideas in five particular topics and rightly deserves its place in the library of all who practice in this area. It is not a book for one to settle down and digest in one easy bite -- this book requires and commands time to properly consider. It is all the better for that attribute. Further volumes are awaited with much anticipation."

--Klaus Reichert, Brick Court Chambers is a Barrister and Chartered Arbitrator. He is Co-Chair of the IBA Litigation Committee, is a member of the LCIA European Users' Council, the ICC Commission on Arbitration, IBA delegate to the Hague Conference on Private International Law.

"This is a very wide-ranging work that brings together several generations of legal specialists from very different cultures of law; it includes highly original, even brilliant contributions."

--Droit Et Pratique Des Investissements Internationaux - (International Investments Law And Practice)

Author/Editor Detail: