Investment Treaty Arbitration and International Law - Volume 2
Investment treaty arbitration has rapidly grown over the past ten years and the resulting tribunal decisions have made an important contribution to international law and dispute resolution. This publication contains the papers and proceedings of Juris Conferences’ Second Annual Conference on Investment Treaty Arbitration and reflects a trend that also exists in investment treaty arbitration: a coming together of the new and the familiar. The conference format included a group of eight "up and coming" members of the investment treaty arbitration bar, who drafted the papers that appear in the chapters of this book. The topics of their papers were discussed and debated amongst a group of investment arbitration veterans, many of whom are currently drafting the awards and treatises that have and will form the corpus of international investment law. Their contributions to this project can be found in the four-session transcripts also contained within this volume.
The four topics addressed in this volume are cutting edge issues in the field and will be directly relevant to the work of practitioners and academics for years to come. They include:
- Arbitrators and Issue Conflict - Treading a Tightrope of Legitimacy?
- Do Municipal Investment Laws Always Constitute a Unilateral Offer to Arbitrate?
- Annulment and Judicial Review - How "Final" Is an Award?
- Fair and Equitable Treatment - Evolution or Revolution?
Included in the volume are the luncheon remarks of Judge Stephen M. Schwebel on the topic: “The Provenance and Performance of Investment Treaty Arbitration”
PDF of Title Page and T.O.C.
Introduction
Ian A. Laird and Todd J. Weiler
Keynote Address: The Provenance and Performance of Investment Treaty Arbitration
Judge Stephen S. Schwebel
PART I
ISSUE CONFLICT
Arbitrators and Issue Conflict: Treading a Tightrope of Legitimacy? A Civil Law Perspective
Addy Paola Velazquez
Issue Conflict in International Arbitration: Much Ado about Nothing?
Martha L. Harrison
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
Consent to Arbitration in Foreign Investment Laws
Ignacio Suarez Anzorena
Do Municipal Investment Laws Always Constitute a Unilateral Offer to Arbitrate? The Venezuelan Investment Law: A Case Study
Victorino J. Tejera Pérez
PANEL DISCUSSION
PART III
ANNULMENT AND JUDICIAL REVIEW
A Comparative Analysis of Systemic Change at ICSID
Ignacio Suarez Anzorena
Victorino J. Tejera Pérez
Marco E. Schnabl
Michael D. Nolan
Margrete Stevens
Mark Kantor
Perry S. Bechky
Living With Indeterminacy: A Practical Approach To ICSID Annulment Reasoning
Frédéric Gilles Sourgens
Annulment and Judicial Review - How "Final" Is an Award?
Frédéric Gilles Sourgens
Dmitri Evseev
Christopher F. Dugan
Oscar M. Garibaldi
Stanimir A. Alexandrov
Stephen Jagusch
PART IV
FAIR AND EQUITABLE TREATMENT
Fair and Equitable Treatment: Evolution or Revolution?
Isabel Fernández de la Cuesta González
Fair and Equitable Treatment, Arbitral Jurisprudence and the Implications of State Treaty Practice
Isabel Fernández de la Cuesta González
Fair and Equitable Treatment: Evolution or Revolution?
Christophe Douaire de Bondy
Fair and Equitable Treatment: Evolution or Revolution? PANEL DISCUSSION
Isabel Fernández de la Cuesta González
Christophe Douaire de Bondy
Susan D. Franck
Alejandro A. Escobar
Abby Cohen Smutny
Nigel Blackaby
René Cadieux
TABLE OF CASES
INDEX
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.
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)
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.
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)
PDF of Title Page and T.O.C.
Introduction
Ian A. Laird and Todd J. Weiler
Keynote Address: The Provenance and Performance of Investment Treaty Arbitration
Judge Stephen S. Schwebel
PART I
ISSUE CONFLICT
Arbitrators and Issue Conflict: Treading a Tightrope of Legitimacy? A Civil Law Perspective
Addy Paola Velazquez
Issue Conflict in International Arbitration: Much Ado about Nothing?
Martha L. Harrison
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
Consent to Arbitration in Foreign Investment Laws
Ignacio Suarez Anzorena
Do Municipal Investment Laws Always Constitute a Unilateral Offer to Arbitrate? The Venezuelan Investment Law: A Case Study
Victorino J. Tejera Pérez
PANEL DISCUSSION
PART III
ANNULMENT AND JUDICIAL REVIEW
A Comparative Analysis of Systemic Change at ICSID
Ignacio Suarez Anzorena
Victorino J. Tejera Pérez
Marco E. Schnabl
Michael D. Nolan
Margrete Stevens
Mark Kantor
Perry S. Bechky
Living With Indeterminacy: A Practical Approach To ICSID Annulment Reasoning
Frédéric Gilles Sourgens
Annulment and Judicial Review - How "Final" Is an Award?
Frédéric Gilles Sourgens
Dmitri Evseev
Christopher F. Dugan
Oscar M. Garibaldi
Stanimir A. Alexandrov
Stephen Jagusch
PART IV
FAIR AND EQUITABLE TREATMENT
Fair and Equitable Treatment: Evolution or Revolution?
Isabel Fernández de la Cuesta González
Fair and Equitable Treatment, Arbitral Jurisprudence and the Implications of State Treaty Practice
Isabel Fernández de la Cuesta González
Fair and Equitable Treatment: Evolution or Revolution?
Christophe Douaire de Bondy
Fair and Equitable Treatment: Evolution or Revolution? PANEL DISCUSSION
Isabel Fernández de la Cuesta González
Christophe Douaire de Bondy
Susan D. Franck
Alejandro A. Escobar
Abby Cohen Smutny
Nigel Blackaby
René Cadieux
TABLE OF CASES
INDEX