December 2, 2024
09:00 to
10:15 EST
In the ongoing debate over the future of investment protection, the question arises: if not investor-State treaty arbitration, then what? This panel considers the potential of investment contracts as a viable alternative to traditional investment treaties, including bilateral investment treaties and free trade agreements with investment chapters. Unlike treaties that offer broad protections for foreign direct investment, investment contracts are tailored to specific projects, establishing clear rights and obligations between the host State and the investor. These contracts
can incorporate sustainable development obligations, encouraging investors to contribute to essential sectors such as health, education, and infrastructure, and consider internal public policy objectives of the State in industries such as oil & gas, renewable energies, and mining.
Could investment contracts become instruments that effectively align the interest of foreign investors and the host State’s development priorities? Furthermore, by embedding specific responsibilities within the contract, these agreements might address criticisms of the one-sided nature of the investor-state dispute settlement mechanism, fostering a more equitable framework for resolving disputes. The reciprocal nature of investment contracts may create greater procedural and substantive balance, as the host State or State-owned company could easily identify contractual obligations that shall be performed by foreign investors, and the legal recourse—including direct investment contract claims and counterclaims—that the host State or State-owned company could pursue.
However, considering that there are over 3,300 investment treaties according to UNCTAD, with 2,222 currently in force, is such a transition realistic or even feasible? Is it desirable? Who can definitively claim that investment treaties have not provided protection to foreign investors while simultaneously attracting foreign investments under the framework of international law?
The withdrawal of European states from the Energy Charter Treaty (ECT) is set to significantly affect investment, arbitration, and the enforcement of international arbitration awards. As countries exit the treaty, investors in the energy sector may encounter increased uncertainty regarding asset protection, potentially leading to a decline in foreign direct investment in Europe. This change could prompt companies to reassess their long-term strategies, particularly in renewable energy, where legal frameworks are less clear.
The European Court of Justice’s ruling in Komstroy v. Moldova, which deemed intra-EU disputes under the ECT incompatible with EU law, complicates the enforcement of arbitration awards. This ruling may lead EU courts to refuse enforcement of awards from intra-EU arbitration claims, creating further uncertainty for investors. The emphasis on the ECJ’s interpretation undermines established arbitration mechanisms like ICSID and UNCITRAL, causing investors to doubt the reliability of international arbitration within the EU. This situation could diminish the credibility of arbitration mechanisms and lead to non-compliance with awards, destabilizing the system. Countries might turn to alternative frameworks like the proposed Multilateral Investment Court. However, this shift could raise tensions in fulfilling international legal obligations and enforcing awards.
This scenario could erode the credibility of arbitration mechanisms and result in non-compliance with awards, destabilizing the current system. Countries may turn to alternative dispute resolution frameworks, such as the proposed Multilateral Investment Court or the Investment Court System (ICS) under the EU-Canada Comprehensive Economic and Trade Agreement (CETA). However, this transition could create tensions in upholding international legal obligations and enforcing awards, raising broader concerns about the effectiveness of global investment protection agreements in an evolving geopolitical context. Meanwhile, enforcement of ECT awards against European states varies by jurisdiction. In the UK, courts have upheld the enforceability of intra-EU ICSID awards despite EU law objections, as seen in the Achmea case. Similarly, Australian courts have also recognized and enforced such awards, notably in the case of Antin v. Spain. The situation in the US is less clear, with pending appeals. Some cases like NextEra v. Spain have allowed enforcement, while others, such as Blasket, have denied it based on EU law. A consolidated ruling on this matter is expected soon.
This panel will address critical questions regarding the impact of ECT withdrawal on investment arbitration, challenges for investors in enforcing awards against European states, and the evolving global investment landscape. Experts will provide insights into these issues and the future of international investment and arbitration.
The Equal Representation in Arbitration (ERA) pledge, introduced in 2015, sought to address gender inequality by promoting the fair representation of women in arbitral appointments. In light of similar concerns within expert witness roles, the Equal Representation for Expert Witnesses (ERE) pledge was launched in May 2022. This initiative aims to enhance the visibility and representation of women as expert witnesses throughout the dispute resolution community. The goal is to achieve proportional representation and full parity, whilst also encouraging women to aspire to expert witness roles.
This panel will explore the evolving landscape of gender equality in expert witness representation. It will assess the progress made since the ERE pledge’s inception, consider ongoing challenges, and discuss the key actions required to ensure fair and equitable representation going forward. Our WAW panelists, which will include experts, arbitrators and counsel among others, will discuss, from their experience, how the progress and evolution towards expert witness and gender equality may be impacting international arbitration, how are tribunals, parties, and counsel reacting to having expert witness from more diverse backgrounds. May such greater diversity among expert witnesses help to further advance the fairness, efficiency, and justice of the arbitral process? The panel will feature leading voices from the legal, arbitral, and expert witness arenas, who will share their experiences and insights on advancing gender diversity.
In international construction arbitration, one of the main challenges is navigating the complexities of joinder, consolidation, and related issues. Given the large number of participants usually involved in construction projects, it is often necessary to determine which parties should be included in proceedings and whether related arbitrations should be combined. Another challenge involves the sheer number of claims—sometimes reaching into the hundreds—associated with construction projects. This includes determining how to manage claims with varying characteristics and quantum, when to pursue litigation, and how to handle overlapping claims and counterclaims. These decisions are crucial due to the interconnected nature of construction disputes, where multiple parties and intertwined issues frequently arise.
This panel will examine the distinctive features and challenges of managing multiparty construction disputes and discuss the best approaches to addressing these issues in arbitration.
The US presidential elections are closer day by day. By the time WAW commences, the world will be either adjusting to the possibility of Donald Trump’s second term or witnessing Kamala Harris making history as the first female President in the US. The new President will face significant challenges, including ongoing regional conflicts such as Russia’s invasion of Ukraine and the expanding conflict in the Middle East. Additionally, the fallout from a fraudulent election in Venezuela will add to the complexities in the Americas.
In recent years, the US, like much of the world, has made little progress in promoting free trade. While the US has focused on incentivizing domestic production, both Europe and China have implemented their own measures and subsidies. In the field of International Arbitration, the transition from NAFTA to the USMCA effectively ended the possibility of US investors submitting investment arbitration claims against Canada and vice versa. Nonetheless, US investors continue to depend on a robust network of bilateral investment treaties and free trade agreements to safeguard their interests through international adjudication. Although the US is not actively engaged in investment treaty negotiations, unlike the European Union, there seems to be no agenda to dismantle the current investment arbitration system.
What position will the new President likely take regarding investment arbitration? Could the framework established by the USMCA be replicated in future treaties, or was it a one-off arrangement? Will the energy transition and renewable energy become central themes in a new generation of US investment treaties? Some predict that the US might abandon investment treaties altogether, opting instead to encourage corporate negotiations between US investors and host states, as well as their state-owned enterprises. Will the new administration align with Europe’s ambition to establish another international court for investment disputes, or will it maintain the current system of international arbitration? Additionally, how might the new US government address the ongoing series of favourable investment awards sought by investors against European and other states? These questions and more will be explored in this WAW panel discussion.
Jurisdiction is a critical issue in ISDS proceedings, as it helps determine whether an investment falls under treaty protection. Forensic and quantum experts play vital roles by (i) tracing the flow of funds used for investments, (ii) identifying ownership of these resources, and (iii) detecting any signs of fraud or corruption. They also assess how external factors might disrupt the causal relationship between an event and the claimed damages.
This panel will explore how forensic, and quantum experts assist claimants and respondents in establishing or challenging jurisdiction and causation, and how their expertise can be applied in judicial contexts beyond ISDS. For example, their analysis could provide crucial evidence in civil cases involving financial disputes or fraud investigations.
Corruption, fraud, and other violations of the principle of good faith in global trade and investment presents significant challenges for international commercial and investment arbitration tribunals. In their pursuit of profit, parties may engage in illegal conduct to secure, procure, or execute contracts. While such practices are condemned within international arbitration, questions remain about the system’s ability to address instances where corruption or fraud occurred either at the inception of an investment or during its operation. What does it mean for a system if corruption, fraud, or even money laundering at the outset of an investment results in a lack of jurisdiction to sanction both the investors and government officials involved in the unlawful scheme? Moreover, what recourse do tribunals have when such unlawful acts arise during the investment’s operation?
Cases such as World Duty Free v. Kenya, which dealt with corruption in an investment contract arbitration, Metal Tech v. Uzbekistan, related to corruption in an investment treaty arbitration, and Inceysa v. El Salvador, where fraud was established at the time of the investment, underscore the serious consequences of these issues. Additionally, the recent case of Vale v. BSG Resources has also sparked considerable discussion, as the tribunal had to apply a high evidentiary threshold to allegations of corruption.
This panel aims to examine rulings and developments in investor-State arbitration cases. It will also focus on international commercial arbitration case law. The discussion will address violations of the general principle of good faith related to corruption, fraud, and other unlawful acts in the procurement or operation of foreign investments. The WAW panel will explore questions concerning the standard of proof, the implications of findings of fraud or corruption depending on when those unlawful acts occurred, and whether tribunals have any discretion in their rulings. This includes considerations related to the formulation of their awards and the damages they impose, all in the pursuit of addressing corruption, fraud, and other breaches of general principles of law.
In international arbitration, winning an award is merely the first step; the real challenge lies in enforcing it across borders. The June 2024 ICSID background paper, “Compliance and Enforcement with ICSID Awards,” underscores the effectiveness of the ICSID Convention regime in investment arbitration. Research from the ICSID Secretariat indicates that domestic courts predominantly recognize and enforce ICSID awards without assessing their merits or jurisdiction, while limiting sovereign immunity defenses to the execution phase.
For the ICSID Convention, and in general for the international arbitration system, both commercial and investor-State, to function effectively, it is vital that States, investors and disputing parties comply with awards. When compliance fails, it is the responsibility of domestic courts and other competent authorities to enforce these awards. Consequently, successful compliance and enforcement are essential for maintaining party confidence in international arbitration.
This panel will discuss the findings of the ICSID background paper and analyze recent trends in D.C. Circuit opinions regarding the enforcement of investor-state and international commercial awards, among others in the cases of CIMEX, S.A., No. 21-7127 (D.C. Cir. 30 July 2024) and Titan Consortium 1, LLC v. Argentine Republic, No. 21-CV-2250, 2024 WL 3858821 (D.D.C. 19 August 2024). Additionally, it will examine the implications of federal appellate decisions interpreting the Foreign Sovereign Immunities Act, and will share strategies and tools for effective enforcement, including the area of investigation and asset tracing.
Establishing a causal link between the alleged breach of the applicable instrument and the injury sustained is a critical aspect of determining the respondent’s liability. Causation is also essential for discussing the existence and the amount of damages. Thus, it is vital for both parties in the dispute and the tribunal to clearly understand the burden and standard of proof required to establish causation.
This panel will explore various interpretations of causation in international law, particularly within the context of Investor-State Dispute Settlement (ISDS). It will examine the applicability of the “but for” causation standard, the two-tiered framework of factual and legal causation, and the relevant standards of proof.
The UNCITRAL Working Group III continues its efforts to reform the investor-State dispute settlement system, which remains a central point of discussion and concern for Member States. Since its establishment in 2017, the Working Group has achieved considerable progress, including the recent draft statute for an Advisory Center on International Investment Dispute Resolution. This initiative aims to help states prevent international investment disputes and offer training to enhance their capacity, ultimately reducing both the occurrence of disputes and the associated damages
One particularly contentious proposal is the establishment of an appellate body that would allow arbitration decisions to be appealed, or a multilateral investment court envisioned as a permanent judicial institution with fixed judges. Both initiatives seek to improve the system’s predictability, uniformity, coherence, and ability to rectify inconsistent decisions, which are common criticisms of the ISDS mechanism. Key discussions on these topics are scheduled for September 2024. Could either of these institutions be better suited to create a more balanced system with greater consistency, or is this an unrealistic expectation given the thousands of different investment treaties currently in force?
This panel aims to explore the implications of establishing an appellate facility or a multilateral investment court, a topic that has sparked division and debate. For proponents, these proposals could address perceived deficiencies in the ISDS system, while opponents might view them as creating a white elephant which, given the characteristics of the ISDS system with more than 3,000 investment treaties—similar and yet different—, with great difficulty might be able to deliver sufficient consistency in a cost-effective manner.
We are delighted to announce that as part of the Washington Arbitration Week, we will be holding an interactive expert witness cross-examination training session, co-organised with PricewaterhouseCoopers (PwC). This half-day event, co-organised with PwC, will provide a unique opportunity for lawyers to practice cross-examination of a quantum expert based on a mock investment arbitration case.
The aim of the course is to provide the lawyers with the opportunity to cross-examine a quantum expert in a safe environment, in front of a panel of experienced arbitrators, who will provide feedback to the teams. It offers a unique opportunity for lawyers to enhance their skills and confidence in cross-examining quantum experts, as well as to network with peers and experts in the field of international arbitration.
As disputes become increasingly international, complex, and urgent, the arbitration landscape is adapting through the integration of advanced technologies. The legal industry, previously slow to embrace such innovations, is now experiencing a significant transformation. While tools like e-mail and digital data management have already revolutionized legal practices, the COVID-19 pandemic further accelerated the adoption of online technologies.
In this context, artificial intelligence (AI) is emerging as a key player in international arbitration. AI is improving the efficiency and effectiveness of arbitration by streamlining document review, enhancing predictive analytics, and optimizing case management. Additionally, it is advancing legal research, ensuring compliance, strengthening data security, and providing essential decision support.
This panel will explore the significant impact and utilization of AI in arbitration. It will discuss how these technologies are fundamentally altering the practices of lawyering and adjudication, assessing their potential to transform dispute resolution and improve procedural efficiency. Panelists may also address hard questions related to ethical and professional responsibility standards for lawyers and adjudicators on the use of AI. What AI may do? Research, analysis, recounting the procedural history in a case? Should AI stay away from analyzing the case and offering a solution? What role might AI have in the development of international arbitration in the years to come?
Dissenting opinions in arbitration, particularly within the realm of international investment arbitration, continue to spark debate. While some critics regard dissents as an unwelcome influence from common law, others see them as an essential mechanism for the evolution of legal norms. The issue of whether dissenting opinions signal a fragmented and ineffective tribunal or rather a robust and dynamic decision-making process remains unresolved. Despite the criticism, dissenting opinions might be contributing to the development of international law and arbitration by challenging prevailing perspectives and offering alternative interpretations.
This panel will examine the multifaceted role of dissenting opinions in international investment and commercial arbitration. It will consider their impact on the effectiveness of tribunals, the perception of arbitral legitimacy, the real or perceived risk of requests for annulment and the ongoing development of international law. The panel will explore whether dissents serve as a constructive check on arbitral authority, constructively help towards the evolution of investment arbitration or, instead, undermine the coherence of tribunal decisions.
Take in the impressive landmarks of Washington DC and break for some fresh air in between sessions while connecting with fellow CGA supporters and learning more about sustainability in international arbitration. Leaders of the CGA will share how they have put the Green Pledge into practice, implemented the Green Protocols, and institutionalized sustainable behaviors and Green Actions within their organizations and look forward to welcoming WAW attendees for some fresh air and conversation.
We will meet outside Crowell & Moring at 13:15 EST, following the session “Are Dissenting Opinions in Arbitration Useful? How May Dissenters Contribute to Move the Law Forward in International Investment Arbitration?” and allowing time for lunch prior to the walk. We will guide participants through the city and will end our walk at the entrance of Freshfields just prior to the 14:30 EST session “Expedited Proceedings in International Investment and International Commercial Arbitration: Features and Steps that Parties, Counsel and Arbitrators Must Bear in Mind and Take.
Arbitration can serve as an efficient and cost-effective means of resolving disputes within a private and impartial framework. For less complex issues or cases involving smaller amounts, expedited arbitration can be especially attractive, particularly when parties seek a substantive ruling rather than a compromised settlement. Many leading arbitration rules now include provisions for expedited arbitration, which typically feature accelerated timelines, simplified procedures, reduced costs, minimal or no hearings, and a focus on delivering swift awards. Among these rules, the 2022 ICSID Rules allow for expedited arbitration, contingent on mutual consent from both parties. The AAA/ICDR has its own framework that focuses on minimizing costs and timelines, while the ICC includes expedited procedures that are automatically applicable to certain disputes unless parties expressly agree to opt out. Each of these frameworks has unique features that cater to different needs in the arbitration process.
This panel will examine the practical steps that parties, counsel, and arbitrators should take when engaging in expedited arbitration. It will cover strategies for effectively managing the expedited process, addressing potential challenges, and ensuring that the arbitration remains fair and efficient. Panelists will share their insights on expedited arbitration, the strengths and limitations of different expedited arbitration rules, and how they may or may not contribute to achieving prompt and cost-effective resolutions possibly for small and medium size disputes, while maintaining the integrity of the arbitral process.
In investment arbitration, damages are the primary remedy. However, they are often discussed on the last day of the hearing, typically in a rushed manner. This panel will examine the implications of addressing damages at this late stage and whether this hurried approach is justified, particularly in light of South32 v. Colombia, where the tribunal prioritized evidence regarding damages first and then structured the proceeding around it.
The panel will also analyze the majority decision to award future damages in South32 v. Colombia. While characterized as “exceptional, [but] not unique,” this decision has sparked considerable debate. Professor Andrés Jana Linetzky’s dissent criticized this approach, arguing that the future damages are uncertain and inconsistent with the terms of the bilateral investment treaty. The panel will explore the implications of such decisions and their broader impact on investment arbitration practices.
Moreover, assessing interest is also a vital component in determining fair compensation, but it presents significant complexities. The Chorzów Factory case and the Draft Articles on State Responsibility highlight the importance of achieving full compensation, yet practical challenges remain. Key considerations include choosing suitable interest rates—such as LIBOR versus government bond rates—establishing the starting date for interest accrual and deciding whether to apply compounding. This panel will also explore the different types of interest used in damage calculations and the intricacies associated with their application.
As investor-state arbitration disputes continue to escalate worldwide, sovereign states are adopting various defense models to manage these claims. Approaches range from fully outsourcing defense to external counsel to hybrid models that combine external expertise with in-house legal teams, as well as a model of defense led entirely by the state’s internal international counsel. Each model presents unique dynamics that influence a state’s ability to protect its interests while navigating complex legal and policy landscapes.
However, relying heavily on in-house counsel for investor-state arbitration can present challenges. International arbitration might require specialized skills such as language fluency, some familiarity with common law, and extensive experience in international disputes. These requirements can be difficult for in-house teams to consistently fulfill – potentially affecting their effectiveness in handling arbitration cases. On the other hand, utilizing in-house counsel offers distinct advantages, particularly in integrating legal expertise with local policy-related knowledge to align defense strategies with national objectives.
The panel will explore the potential challenges and strengths of a defense led by in-house international counsel. Key questions include: How can in-house counsel ensure consistency across multiple arbitration cases? What role can they play in reshaping BITs and preventing future disputes? How can they balance national sovereignty with compliance in international legal frameworks? Panelists will offer their insights, share experiences, and provide practical guidance on overcoming challenges and maximizing the strategic position of in-house counsel in investor-state arbitration.
In investment arbitration, third parties are currently limited to submitting amicus curiae briefs, which tribunals often overlook. A notable instance is the Glamis Gold v. United States case, where the tribunal accepted an amicus brief but ultimately disregarded its contents in the final award. The exclusion of third-party rights within the ISDS framework has faced considerable criticism, particularly regarding its implications for human rights and environmental protections.
During the 37th Session of the Working Group III on Investor-State Dispute Settlement Reform, the necessity for greater third-party participation was highlighted, as it could facilitate the consideration of crucial social issues and enhance the legitimacy of the arbitration process. In addition, non-disputing parties encounter significant challenges in accessing confidential information, which limits their ability to contribute meaningfully to cases that directly affect communities and the environment.
This panel will address these pressing matters by examining current practices surrounding non-disputing party submissions, the role of amicus curiae briefs in influencing tribunal decisions on issues of law, and the specific obstacles non-disputing parties face in obtaining necessary information. By fostering a dialogue on potential reforms and best practices, the panel aims to explore how to create a more inclusive and equitable approach to investment arbitration that better serves the interests of all stakeholders involved.
Are you an international arbitration practitioner contemplating the path of becoming an arbitrator? Are you transitioning from counsel in a big law firm into solo practice? Or are you a student eager to pursue a career in international arbitration? If so, this panel is perfectly suited to you!
Our panelists will not only share their experiences but also provide practical guidance on entering this field and transition through it. They will discuss the essential steps for breaking into international arbitration, including establishing a solid educational foundation, acquiring relevant experience through internships, investing in developing written and verbal skills, and following effective networking strategies. Additionally, you will learn about their motivations for pursuing a solo practice or an arbitrator career, the challenges they have encountered, and what they might have approached differently throughout their journeys.
WAW presents an invaluable opportunity to gain insights and guidance for your own career path in arbitration. Be sure not to miss it!
Human rights increasingly influence both the public and private sectors as international trade becomes more intertwined with corporate responsibility and sustainability. Consequently, investors must consider committing capital to projects that adhere to labor, environmental, and human rights standards. Balancing these considerations with commercial interests poses challenges, particularly in international commercial and investment arbitration.
In the private sector, multinational corporations are facing growing demands to address the human rights implications of their supply chains, working conditions, and environmental impacts. Some international commercial arbitrations may involve disputes related to labor and environmental rights. In investment treaty arbitration, which is governed by public international law, human rights and public interest may carry significant weight, especially since applicable laws often encompass public international law. There appears to be a gradual but steady movement toward integrating human rights, environmental protection, and sustainable development into bilateral investment treaties. For example, the 2016 BIT between Nigeria and Morocco included provisions for human rights protections.
This panel aims to explore the challenge of reconciling investor rights with the obligations of states and investors to respect human rights. It will also examine how economic growth in commercial arbitration can align with transparent and responsible practices that protect and promote human rights.
In the context of the climate crisis, international arbitration is becoming increasingly significant as the global shift away from fossil fuels gains momentum. With COP 28 focusing on accelerating the transition to renewable energy, arbitration is expected to play a vital role in resolving disputes between states and investors in sectors such as oil, gas, and energy infrastructure. Notable cases like Portigon AG v. Kingdom of Spain (ICSID Case No. ARB/17/15) and Uniper SE v. Kingdom of the Netherlands (ICSID Case No. ARB/21/22) exemplify the legal complexities that arise as countries strive to fulfill their climate commitments while managing the phase-out of fossil fuel assets.
Additionally, the upcoming ICJ advisory opinion on climate change could offer crucial legal guidance on states’ obligations to mitigate environmental harm, potentially impacting future arbitration decisions. Key questions revolve around the legal responsibilities of states in addressing climate change under international law, including issues like responsibility for transboundary harm and the rights of future generations. The ICJ will examine whether international law mandates that states prevent or mitigate such harm, focusing on the principles of due diligence and precaution, as well as the interpretation of the Paris Agreement and its binding implications for states. Furthermore, the proposed establishment of a fund to compensate for environmental damages, discussed at recent climate summits, could significantly reshape the arbitration landscape by providing financial resources for affected communities and creating a framework for resolving climate-related disputes. As global efforts to combat climate change intensify, international arbitration may prove to be a crucial tool for managing the legal challenges stemming from the energy transition and ensuring accountability in environmental protection.
This panel will address whether the existing network of international investment treaties poses a limitation to the energy transition due to potential liabilities arising from regulatory changes moving from fossil fuels to renewables. Or, could this framework offer the necessary assurances to investors financing the trillions of dollars required for renewable energy projects? Additionally, what legal mechanisms should be prioritized to ensure the fund for compensating environmental damages is effective, and how can arbitration facilitate a transparent and equitable distribution of resources to affected communities?
