Originally from Investor-State Arbitration--Lessons for Asia

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Ladies and gentlemen, we have been richly treated today to a wide range of highly interesting and thought-provoking discussions. At one stage I had in mind to offer my own small contribution, but as I stand alone between you and the door it might be rash to aim too high at this late hour. Anyway, a lot of what I might have said has already been said by others (and probably better), so instead I will step aside from law and theory to look at investor-state disputes from the layman’s perspective; through the practical, maybe sceptical eyes of the average international investor on the Wanchai omnibus. 

As Neil Kaplan said in his kind introduction, I have had the good fortune to live and work in this region for 14 years. If nothing else, that allows me to say with some confidence that bilateral and multilateral investment protection agreements rarely dominate the gossip in Thai coffee shops or Singapore bars or Hong Kong cafes. It is sometimes easy for those of us who practice in this area and find it stimulating to forget what a very esoteric and rarefied field it really is. So it seems fair to start by asking if the average Asian business executive has ever even heard of investment treaties.

I am not aware of any empirical data. Nevertheless, allow me to speculate that the average person in an Asian street has never heard of investment treaties and would not have the remotest idea what they are or what they can do. More significantly, the same may be true in regional boardrooms and not a few law firms too. I would hardly count myself an expert in today’s company, but I know from experience and observation that even a little knowledge is a rare commodity in this region. And that is very important context for today's discussions. Our theme has been Investor-State Arbitration: Lessons for Asia, but if investor-state arbitration is to make any real impact in Asia or for Asian investors, it will first be necessary to establish it on people’s radars. In order for Asian business to begin to explore what investment protection agreements may offer, business people and their lawyers, investment bankers and other consultants must first be aware of the basic fact that these agreements exist. I am not at all sure that they know that now.