Originally from Investor-State Arbitration--Lessons for Asia

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The aim of this presentation is to share with you some of my experiences acting and advising governments of developing countries in Asia in relation to arbitration proceedings arising from investment treaty claims.

Overview

A. International commercial arbitration regime . Even before a substantive discussion of the fundamental components of an investment treaty claim arises, there is a need for the host government to understand and accept the fundamentals of international commercial arbitration. The reality of the situation we are confronted with today is that despite international business relying for the most part on arbitration as the preferred mode for resolving commercial disputes, there is a wide spread distrust by many governments in this part of the world with the concept. The situation is compounded in the context of treaty claims since governments have to accept that a private tribunal, usually made up of individuals from Europe and/or the US will effectively sit in judgment on the conduct of state organs on domestic matters. It is my position that the host government must understand and accept that, for all its ills, international arbitration in its current conceptual framework is how today’s investors want their disputes to be resolved. Resistance to the practice and procedures of international commercial arbitration generally and the dispute resolution mechanisms of investment treaties in particular is the biggest ‘mindset’ difficulty one has to grapple with when advising governments who view this body of law as alien, a ‘product of the West’, biased, expensive, complicated and one in which they have no faith that their views will be considered.