Originally from Investment Treaty Arbitration and International Law - Volume 3

MR. LAIRD: Welcome to the fourth and final session of the conference. We have picked an excellent group of panelists and authors to address a topic which certainly generates much discussion in the investment arbitration community. And we have asked Alex de Gramont to moderate this group. Alex is Partner in Crowell & Moring, here in the District of Columbia. He’s been there for 18 years now and has had an incredible practice in international litigation, as well as arbitration and investment arbitration. So thank you, Alex. And I pass over the baton to you.

MR. de GRAMONT: Thank you, Ian. The topic of our panel is Legitimacy and Inconsistencies: Is Investment Arbitration Broken, and If So, Can Or Should It Be Fixed? This is by far the most interesting and important topic of the day. If a system suffers from a serious lack of legitimacy, that system is not going to last. I would submit that the appearance of legitimacy may be as important as legitimacy itself. So, the question is whether inconsistency detracts from legitimacy or the appearance of legitimacy, or whether inconsistency is a necessary part of any serious developing legal system. And if it’s the latter, can we convince users of the system that inconsistency is a necessary and perhaps salutary part of a serious developing legal system? Ian Laird started off the day by quoting the late Thomas Wälde’s words about path coherence. To state the question differently, how much inconsistency can the notion of path coherence tolerate?

To address these fascinating questions we have two very impressive authors and a terrific panel. Monica Fernandez is currently Advisor to the Ministry of Foreign Trade of Costa Rica on international investment arbitration. She is Professor of public international law at the University of Costa Rica. She was formerly a legal officer at the Inter-American Court of Human Rights, and she also practiced law as a foreign attorney at White & Case in Washington D.C. Christina Schuetz is an attorney in the Frankfurt office of Shearman & Sterling where she specializes in international arbitration and litigation. She has written on the subjects of arbitration with Chinese parties, and investment protection in Latin America. Stanimir Alexandrov is Partner in the Washington D.C. office of Sidley & Austin. He is also Professor at the George Washington University Law School. He has handled numerous cases for both investors and states at ICSID and many other fora. Before private practice he held a number of high level positions in government, including the position of Vice Minister of Foreign Affairs of Bulgaria. Chip Brower is the Jessie D. Puckett Lecturer and Croft Associate Professor of International Law at the University of Mississippi School of Law. He has written and spoken widely on investor-state and related issues, and has particular academic interests in the number of areas that we are going to be discussing. Professor Brower also sits as an arbitrator. Claudia Frutos-Peterson is Consultant in the D.C. office of the law firm Curtis & Mallet. Many of us know her from her years serving as a secretary to many tribunals at ICSID where she was counsel. She is also Adjunct Professor at American University. And last, but certainly not least, Joseph Profaizer is Counsel in the D.C. office of Paul Hastings. He has handled numerous investor-state cases including one of the first cases, maybe the first case, under CAFTADR. Before joining Paul Hastings he practiced for a number of years in the London office of Wilmer Cutler & Pickering. He has written and spoken extensively about these issues. So let’s turn it over to our authors. We’ll start with Christina.