World Arbitration And Mediation Review (WAMR) - 2009 Volume 3 No. 4-5
About the Editors:
Leah D. Harhay provides legal assistance and secretariat services to international tribunals, arbitrators and experts. Currently she is the Legal Secretary of the Tribunal in Glamis Gold, LTD. v. United States of America and Cargil, Inc. v. United Mexican States, both arbitrations under Chapter 11 of the North American Free Trade Agreement. Previously, Ms. Harhay practiced with Latham & Watkins, LLP in San Francisco, with a focus on litigation and arbitration, and clerked for the United States Department of Justice, Environment and Natural Resources Division.
Charles H. Brower, II has taught International Business Transactions, International Commercial Arbitration, and Public International Law at the University of Mississippi for over a decade. He has also served as Visiting Fellow at Cambridge University’s Lauterpacht Research Centre forInternational Law, Tillar House Sabbatical Fellow at the American Society of International Law (ASIL), and as Visiting Associate Professor and Scholar-in-Residence at American University. Emphasizing investment treaty disputes, his publications have appeared in the American Journal of International Law, Arbitration International, the Columbia Journal of Transnational Law, the Vanderbilt Journal of Transnational Law, and the Virginia Journal of International Law. He has also contributed chapters to several books.
In addition to his academic work, Professor Brower is an arbitrator who currently enjoys membership on the Commercial Panel of the American Arbitration Association. He also serves on the Executive Committee of the Institute for Transnational Arbitration (ITA), andis the Chair of its Academic Council in January 2009. Additionally, he has served as Advocate for the Government of the Republic of Costa Rica in advisory proceedings before the International Court of Justice, as a member of the Executive Council of the American Society of International Law (ASIL), co-chair of the ASIL’s 97th Annual Meeting, and co-chair of the ITA’s 18th Annual Workshop.
David D. Caron is the C. William Maxeiner Distinguished Professor of Law at the University of California at Berkeley. He currently serves as Chair of the Advisory Board for the Institute of Transnational Arbitration, as a Co-Director of the Law of the Sea Institute, and as a member of the Board of Editors of the American Journal of International Law. He presently serves as a member of the NAFTA Chapter 11 Arbitration Panels in the matters of Glamis Gold v. The United States and Cargill, Inc. v. The United Mexican States. Professor Caron is a member of the U.S. Department of State Advisory Committee on Public International Law and of the World Economic Forum Global Agenda Council on the International Legal System.
Professor Caron served from 1996 to 2003 as a Commissioner with the Precedent Panel (E2) of the United Nations Compensation Commission in Geneva resolving corporate claims arising out of the 1990 Gulf War which, over a series of seven installments, addressed several thousand corporate claims in the construction, insurance, banking, transportation, export, tourist and aviation sectors. He also served as Counsel for the Government of Ethiopia before the Eritrea - Ethiopia Claims Commission in 2004-2005, as President of the ICSID Tribunal in the matter of Aguas del Tunari v. The Republic of Bolivia (2002 to 2006), as Counsel to the Marshall Islands Nuclear Claims Tribunal, and as legal counsel to various Governments. He is included as one of the top international arbitrators listed in Chambers USA, Chambers Global and Who’s Who Legal, California. He is a member of the panel of arbitrators for the China International Economic and Trade Arbitration Commission (CIETAC) and the International Centre for Dispute Resolution (ICDR); and is a founding Fellow of the College of Commercial Arbitrators.
Abby Cohen Smutny is a Partner of White & Case LLP, residing in Washington, DC. Ms. Smutny specializes in international arbitration and regularly serves as lead counsel in high-stakes cases involving contentious political issues, complex claims for compensation and legal issues of first impression. She has particular expertise in matters involving investment disputes with State parties, including issues of State responsibility, sovereign immunity and investment treaty protections. Ms. Smutny represents both sovereign and private parties in arbitrations before ICSID, its Additional Facility, the ICC, the Vienna International Arbitral Centre, the LCIA, as well as in ad hoc arbitration, such as under the UNCITRAL Rules and before other major international arbitral institutions.
Ms. Smutny is Vice-Chair of the International Bar Association’s Arbitration Committee, and was formerly Chair of the Investment Treaty Sub-committee. She serves as a member of the Advisory Board of the Swiss Arbitration Academy, the Institute for Transnational Arbitration, Investmentclaims.com, and Transnational Disputes Management; and sits on the Editorial Boards of Global Arbitration Review and the Journal of International Arbitration. She has been a member of the Executive Council and Executive Committee of the American Society of International Law, the Executive Committee of the Institute for Transnational Arbitration, and was Chair of the International Law Section of the Washington, DC Bar Association. She writes and speaks frequently on topics involving international arbitration and investor-State dispute resolution.
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WAMR 2009: Vol. 3, No. 4-5 - Preview Page
THE CONVENIENT MYTH OF DAVID AND
GOLIATH IN TREATY ARBITRATION
Lucy Reed and Lucy Martinez*
I. INTRODUCTION AND OVERVIEW
The concept or conceit of "David and Goliath" in investmenttreaty
arbitration is not new.1 It was used by Karl Heinz
Böckstiegel in his 2006 Clayton Utz lecture, and the image readily
comes to mind of Goliath, the State, inviting the investor in,
controlling the resources, laws, courts, and police, and
expropriating or regulating the investor - poor little David - to
distraction.2 But, hark, David pulls out his slingshot of arbitration
before the International Centre for Settlement of Investment
Disputes (ICSID) and brings the State to its knees.
Volume 3 2009 Number 4-5
*WHEN ARBITRATIONS GO BAD*
PAPERS FROM THE 6TH ANNUAL ITA-ASIL CONFERENCE
THE CONVENIENT MYTH OF DAVID AND GOLIATH IN TREATY ARBITRATION
Lucy Reed & Lucy Martinez
YOU CAN BET THE COMPANY BUT NOT THE STATE: THE PROPER AND IMPROPER CONDUCT OF SOVEREIGNS IN ARBITRATION
DOCUMENT PRODUCTION IN INTERNATIONAL ARBITRATION: WHAT DOES IT HAVE TO DO WITH DISCOVERY?
MESSAGE FROM A CLIENT
Charles A. Beach
*ISSUES IN INVESTMENT ARBITRATION*
ISSUES OF PROOF OF GENERAL PRINCIPLES OF LAW IN INTERNATIONAL ARBITRATION
Michael D. Nolan & Frédéric Gilles Sourgens
ICSID PROVISIONAL MEASURES TO ENJOIN PARALLEL DOMESTIC LITIGATION
INTELLECTUAL PROPERTY PROTECTION THROUGH INVESTMENT AGREEMENTS: CHALLENGES OF A DIFFERENT HORIZON OF INVESTMENT PROTECTION