The Provenance and Performance of Investment Treaty Arbitration - Chapter 1 - Investment Treaty Arbitration and International Law - Volume 2
About the Editor:
IAN A. LAIRD is Counsel 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.
TODD J. WEILER is an investment treaty counsel and arbitrator and noted expert on NAFTA Chapter 11. He is the co-founder of Investmentclaims.com and the publisher of NAFTAClaims.com.
Contributors include:
Addy Paola Velazquez is a fellow student of the International Legal Studies Program of the Washington College of Law. Recently, she worked for a Mexican NAFTA arbitration analyzing international disputes under NAFTA and other international investment treaties.
Martha Harrison is a Attorney with the International Trade and Competition Group of Heenan Blaikie LLP’s Toronto office. She has been involved in a number of ICSID and UNCITRAL arbitrations, particularly under the provisions of NAFTA Chapter 11.
Victorino J. Tejera Pérez is an Attorney in the Caracas office of Macleod Dixon LLP. He concentrates his practice in commercial law, conflict law and corporate matters. He focuses his practice in national and international litigation and arbitration and in Alternative Dispute Resolution in general.
Ignacio Suarez Anzorena is a Latin America Specialist Adviser in the Washington, D.C. office of Clifford Chance. He has been involved in ad hoc and institutional arbitration proceedings conducted under the auspices of most of the leading arbitration organizations.
Frédéric Gilles Sourgens is an Attorney in Milbank, Tweed, Hadley & McCloy’s Litigation Group located in the Washington, D.C. office. He works primarily on international arbitration matters.
Dmitri Evseev is an Attorney in the international arbitration practice group in the litigation practice group of Arnold & Porter LLP in its Washington, D.C. office. He concentrates his practice in the representation of governments and private clients in international arbitration proceedings.
Isabel Fernández de la Cuesta is a Special Legal Consultant in the International Arbitration Group of King & Spalding's Houston office. Ms. Fernández de la Cuesta practice focuses on international arbitration with an emphasis on international public law.
Christophe Bondy is with the Department of Foreign Affairs and International Trade, Government of Canada
Judge Stephen M. Schwebel was first elected to the International Court of Justice in January 1981. He was subsequently re-elected twice, and served as the President of the Court in the triennium 1997-2000. Judge Schwebel is at present an independent arbitrator and counsel in Washington, DC, and a door tenant of Essex Court Chambers in London.
Stanimir A. Alexandrov is a Partner in the Washington, D.C. office of Sidley Austin LLP. He focuses his practice in the areas of international dispute resolution, including investor-state arbitration and international commercial arbitration, and resolution of trade disputes before the World Trade Organization (WTO).
C. Mark Baker is a Partner at Fulbright & Jaworski’s Houston office and he is Co-Head of the firm’s International Department and of the firm’s Arbitration and ADR Practice Group. He is a member of the board of the London Court of International Arbitration (LCIA) and Vice-Chair of the Arbitration Committee of the International Bar Association (IBA).
Nigel Blackaby is a Partner in the international arbitration group of Freshfields Bruckhaus Deringer and is Head of the firm’s Latin America dispute resolution group, based in Paris. He acts as counsel and arbitrator in ad hoc and institutional arbitrations with a particular focus on Latin American commercial arbitration and arbitrations under investment treaties.
René Cadieux is a Partner in the Montreal office of Fasken Martineau DuMoulin. He specializes in business law as well as in administrative, constitutional and international law. He was counsel for the claimants in the ICSID arbitration ADF v. United States, and ADC v. Hungary.
Alexandre de Gramont is a Partner in the International Dispute Resolution practice of Crowell & Moring in its Washington, D.C. office where he specializes in both international arbitration and litigation. He has represented clients in a wide variety of international commercial arbitration and investor-state arbitration matters.
Christopher F. Dugan is a Partner in the Paul Hastings, Litigation practice Washington D.C.. he is the Chair of thier International arbitration practice and of their litigation department in the Washington D.C. office.
Alejandro A. Escobar is a Attorney in the public international law and international arbitration in the London office of Baker Botts, LLP. Mr. Escobar was formerly Senior Counsel at the International Centre for Settlement of Investment Disputes (ICSID) in Washington, D.C.
Mark E. Feldman is the Chief of NAFTA Arbitration at the U.S. State Department’s Office of the Legal Adviser, International Claims and Investment Disputes.
Professor Susan D. Franck is an Assistant Professor at the University of Nebraska-Lincoln College of Law. Professor Franck’s scholarship relates to the resolution of international disputes and investment treaty claims.
Oscar M. Garibaldi is a Partner in the Washington, D.C office of Covington & Burling LLP. He has, for over 30 years, drawn on his triple training as a common-law, civil-law and public- international-law lawyer in representing clients in a broad range of international matters involving complex issues of national and international law
Dr. Ronald Goodman is a Partner in the Washington office of Foley Hoag LLP. He concentrates his practice in international arbitration and alternative dispute resolution, with a focus on commercial, investor-state, project, energy, and construction matters. He also advises governments with respect to law reform, restructuring, treaties, privatization and project finance matters.
Stephen Jagusch is a Partner in the London office of Allen & Overy. He specializes in international commercial and investment treaty arbitration, having acted as adviser and advocate in ad hoc and institutional international arbitrations, conducted in many countries over the world,
Jean Kalicki is a Partner in Arnold & Porter LLP’s litigation practice group Washington D.C., she is responsible for a wide variety of international arbitration and litigation matters. She has particular expertise in investment treaty arbitration and has represented both sovereigns and investors in disputes before the International Centre for Settlement of Investment Disputes (ICSID).
Mark Kantor is an independent arbitrator. He teaches both international arbitration and international business transactions as an Adjunct Professor at Georgetown University Law Center. He is also a Fellow at the Columbia Program on International Investment.
James Lloyd Loftis is a Partner and Chair of the Vinson & Elkins LLP International Dispute Resolution practice, and focuses on international commercial arbitration and investor-state disputes, particularly disputes involving state contracts and investment agreements.
Michael D. Nolan is a Partner in the Washington, D.C. office of Milbank, Tweed, Hadley and McCloy LLP. Mr. Nolan is experienced in all phases of commercial litigation and arbitration.
Marco E. Schnabl is a Partner in the international arbitration and litigation groups of Skadden, Arps, Slate, Meagher & Flom LLP, New York City. He has appeared for claimants and respondents in proceedings before the leading international arbitral institutions including several involving investment treaty arbitrations.
Abby Cohen Smutny is a Partner in the Washington, D.C. office of White & Case LLP.; Her practice focuses on international dispute resolution through arbitration or litigation. She has particular experience in matters involving public international law and treaty based claims.
Margrete Stevens is a Consultant in King & Spalding’s Washington, D.C. office working in the International Investment Arbitration Practice Group. Ms. Stevens served as Acting Lead Counsel, supervising the ICSID Secretariat’s administration of more than 100 investor-State arbitration proceedings including cases brought under bilateral investment treaties; NAFTA; and the Energy Charter Treaty.
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Chapter 1
The Provenance and Performance of Investment
Treaty Arbitration
Luncheon Remarks of Judge Stephen M. Schwebel*
Fifty-four years ago, fresh from Yale Law School, I joined White &
Case in New York. White & Case in those days was only in New York; it is
a sign of the globalization of the practice of law that it now has a score of
offices spread round the world. As I was graduating from Yale, I asked
Professor McDougal for his advice on how to pursue an international legal
career. He replied that before I could be an international lawyer, I had to
learn to be a lawyer. I had not learned that at Yale Law School; the best
thing I could do would be to join a Wall Street law firm that would train
me in how to think, write and talk like a lawyer—in McDougal’s words,
“to make a noise like a lawyer.” In those distant days, students took their
professor’s advice.
Sound advice it was, not only because White & Case did train me, but
because hardly had I walked through the door than did there follow, as
luck would have it, one of the most important international arbitrations of
the twentieth century, that between Aramco and the Royal Government of
Saudi Arabia. Aristotle Socrates Onassis had personally persuaded the
King of Saudi Arabia to sign a contract that gave Onassis a monopoly on
the shipment of all oil from Saudi Arabia, a contract worth untold billions.
Aramco was appalled by the specter of Onassis controlling its lifeline.
Fortunately for the four major American oil companies that then
owned Aramco, the Standard Oil Company of California had selected an
astute lawyer from Pillsbury Madison & Sutro, Lloyd Hamilton, to
negotiate its original concession contract of 1933. He was prescient enough
to include an arbitration clause in the concession, which was to run to the
end of the 20th century and cover virtually the whole of the territory of
Saudi Arabia. British exploration had previously concluded that Saudi
Arabia had no oil, but an unsung American geologist had advised Socal
otherwise. Hamilton may have taken a leaf from the British book by
including an arbitration clause similar to that found in the concession
contract of the Anglo-Persian Oil Company.
I accordingly found myself at the bottom of a towering totem pole of
international legal talent, at the top of which sat Lord McNair, recently
retired as President of the International Court of Justice. I was taken with
the process of international arbitration and have remained so ever since.
Introduction
Ian A. Laird and Todd J. Weiler
CHAPTER 1
Keynote Address: The Provenance and Performance of Investment Treaty Arbitration
Judge Stephen S. Schwebel
PART I
ISSUE CONFLICT
CHAPTER 2
Arbitrators and Issue Conflict: Treading a Tightrope of Legitimacy? A Civil Law Perspective
Addy Paola Velazquez
CHAPTER 3
Issue Conflict in International Arbitration: Much Ado about Nothing?
Martha L. Harrison
CHAPTER 4
Arbitrators and Issue Conflict: Treading a Tightrope of Legitimacy?
Addy Paola Velazquez
Martha L. Harrison
Alexandre de Gramont
Mark E. Feldman
C. Mark Baker
Jean Kalicki
James Lloyd Loftis
PANEL DISCUSSION
PART II
OFFERS TO ARBITRATE
CHAPTER 5
Do Municipal Investment Laws Always Constitute a Unilateral Offer to Arbitrate? The Venezuelan Investment Law: A Case Study
Victorino J. Tejera Pérez
CHAPTER 6
Do Municipal Investment Laws Always Constitute a Unilateral Offer to Arbitrate?
Victorino J. Tejera Pérez
Marco E. Schnabl
Michael D. Nolan
Margrete Stevens
Mark Kantor
Perry S. Bechky
PANEL DISCUSSION
PART III
ANNULMENT AND JUDICIAL REVIEW
CHAPTER 7
A Comparative Analysis of Systemic Change at ICSID
Frédéric Gilles Sourgens
CHAPTER 8
Living With Indeterminacy: A Practical Approach To ICSID Annulment Reasoning
Dmitri Evseev
CHAPTER 9
Annulment and Judicial Review - How "Final" Is an Award?
Drédéric Gilles Sourgens
Dmitri Evseev
Christopher F. Dugan
Oscar M. Garibaldi
Stanimir Alexandrov
Stephen Jagusch
PANEL DISCUSSION
PART IV
FAIR AND EQUITABLE TREATMENT
CHAPTER 10
Fair and Equitable Treatment: Evolution or Revolution?
Isabel Fernández de la Cuesta González
CHAPTER 11
Fair and Equitable Treatment, Arbitral Jurisprudence and the Implications of State Treaty Practice
Christophe Douaire de Bondy
CHAPTER 12
Fair and Equitable Treatment: Evolution or Revolution?
Isabel Fernández de la Cuesta González
Christophe Douaire de Bonds
Susan D. Franck
Alejandro A. Escobar
Abby Cohen Smutny
Nigel Blackaby
René Cadieux
Chapter 13
PANEL DISCUSSION
TABLE OF CASES
INDEX