Originally from Investment Treaty Arbitration and International Law - Volume 10

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PANEL 3

DR. WEILER:  So, I’m happy to introduce Larry Shore, another one of our frequent Panel moderators, a man of great wit and wisdom, and I’d like to point out in that regard that one of your two authors, Alex, is that fellow in that case which you’re on the other side of right now, in case you just want to make a note of that for your introductions.
I don’t need to say any more because I know that Larry is going to say everything that I could have ever wanted him to say, and with that...

MR. SHORE:  Thank you.

DR. WEILER:  Yes. 

MR. SHORE:  Understood.  Thank you, Professor Weiler.

This session’s topic is near and dear to the heart of the conference’s organizers  Laird, Sabahi, Sourgens, Weiler  each of whom has in his own way contributed to the development, or as some would have put it “the perversion of the Fair and Equitable Treatment standard of protection in treaty arbitration.”

As the moderator of this session, my role is limited to timekeeping and introductions, or as Professor Weiler actually said to me in inviting me to moderate, “Bring your watch to D.C. and leave your ideas, such as they are, at home.”  So, clearly, Michael Nolan was not given that direction in the previous session.
(Comments off microphone.) 

MR. SHORE:  But I was, and I’m pretty much going to obey it, unless, perhaps, at this session’s conclusion a summary might be useful, but it might not be.  How we’ll address FET, I’ve read the two papers that form the basis of our discussion, as has our Panelists, and I commend them to you.

I’m going to introduce our two paper presenters and their paper titles, and they’ll then have 12 minutes each, or thereabouts, to perform the impossible task of expressing the best parts of their respective papers while also retaining context.  I’ll then introduce our four Panelists and ask each of them to comment, and they’ll have some time to comment, and then there will be a Panel free for all, and then there be rebuttal and surrebuttal from our two paper presenters, and then there will be, I promise, abundant time for audience free for all.

So, the two paper presenters, first up will be Nicole Silver.  Ms. Silver is Of Counsel in Winston & Strawn’s Washington D.C. office.  She focuses her practice in international dispute resolution, with an emphasis on investor State arbitration.  In that capacity, Ms. Silver has represented foreign investors as well as respondent governments in ICSID and UNCITRAL arbitrations under investment treaties.  The title of her paper is “FET:  Bedrock protection for the rule of international law or Frankenstein chimera”  that’s a really ugly monster, not just an ugly monster  “and Unpredictable Threat to National Sovereignty.”

Ms. Silver will be followed by Alexander Slade.  Mr. Slade is a Senior Associate in the London office of Vinson & Elkins.  He specializes in international arbitration, working both on investment treaties and commercial arbitrations.  He also, on occasion, conducts litigation in the English courts.  The title of Mr. Slade’s paper is “FET:  An evolutionary international standard or artificial legal fiction.”