Monday April 22, 2013
Grand Hyatt Washington, 1000 H Street NW, Washington, DC 20001
Tel: (202) 637-4760; Fax: (202) 624-8081
Conference Downloads
Program Information
The Seventh Annual Juris Investment Treaty Arbitration Conference will address the complex issues raised by investor-state arbitration in the energy sector. The interface between investment treaty arbitration and the energy sector is readily apparent: almost one third of all investor-state arbitrations commenced in 2012 alone arose out of disputes in the energy sector. Energy related regulatory action is likely further to increase rather than decrease with debates about the merits of hydraulic fracturing, nuclear energy, and deep-sea drilling continuing to take center stage in political debates in North America, Europe and beyond.
The conference will be in its usual format – we will pit two rising stars in the field against each other to take a side in key current debates, such as:
- Should the energy sector be governed by a regime separate and apart from other general bilateral and multilateral investment protection agreements?
- Can breaches of contractual commitments be made actionable in the absence of an umbrella clause through the fair and equitable treatment protection?
- Should multiple claimants be precluded from bringing parallel treaty claims with regard to the same project?
- Can, and how should, damages be assessed in investor-state arbitrations beyond the damages provisions set out in the project documents?
Our expert faculty will then continue the debate following the original contributions from our authors for what always proves to be highly entertaining and of great value to practitioners and academics alike who are interested in these important issues.
Co-Chairs
Ian A. Laird is a Partner in the International Dispute Resolution Group of Crowell & Moring’s Washington, D.C. office. He currently works primarily with clients involving issues in the energy and natural resources sector, such as power generation, oil and gas, and mining. Mr. Laird is currently serving as a lecturer-in-law at Columbia Law School in New York teaching the International Investment Arbitration seminar course. He is the co-founder and Editor-in-Chief of Investmentclaims.com.
Borzu Sabahi is an Attorney in Curtis, Mallet-Prevost, Colt & Mosle’s International Arbitration Group. He represents governments and state-owned entities in international arbitration and public international law matters. He has served as counsel and expert in cases brought under bilateral investment treaties, NAFTA Chapter 11 and DR-CAFTA Chapter 10 and under the rules of UNCITRAL, ICSID, ICC, ICDR and the LCIA. His industry experience includes working on energy, telecommunication, and construction disputes.
Frédéric Sourgens is an Associate Professor of Law at Washburn University Law School. His teaching and scholarship focuses on international dispute resolution, with a particular emphasis on resolution of disputes involving political risk. He has published numerous articles on international arbitration and serves as editor for the Oxford University Press Reporter of investor-state arbitral decisions. Prior to joining Washburn Law, Professor Sourgens practiced international arbitration in the Washington,D.C. office of Milbank, Tweed, Hadley & McCloy. He worked as counsel in ICSID, UNCITRAL, ICC and LCIA arbitrations. While in Washington, D.C., he was an Adjunct Professor of Law at Georgetown University Law Center.
Todd Weiler is an investment treaty counsel and arbitrator and noted expert on NAFTA Chapter 11. Mr. Weiler has served as arbitrator, consulting expert and co-counsel in disputes and arbitrations involving investors, host states and interested third parties. He is the Co-Founder of Investmentclaims.com and the publisher of NAFTAClaims.com
Keynote Speaker
David R. Haigh is a Partner in Burnet, Duckworth & Palmer’s Calgary office. His practice focuses on energy litigation, arbitration, commercial and general litigation and construction litigation. He is associated with arbitration centres in Canada and internationally. Mr. Haigh’s energy litigation practice focuses on pipeline agreement, farmout agreements, royalty interpretation and disputes, operating procedures and disputes, petro-chemical construction, lease interpretation and oil and gas evaluations and joint venture agreements.
Faculty
Stephen P. Anway is a Partner in Squire Sanders’ New York and Cleveland offices. He acts as counsel to sovereign nations and multinational corporations in investment-treaty and commercial arbitrations under the ICSID, ICC and UNCITRAL Arbitration Rules. He also represents clients in US courts in cases with an international law element, including cases concerning the recognition and enforcement of international arbitral awards. In addition to contentious matters, he advises governments on various issues of public international law and is a frequent lecturer on investment-treaty and commercial arbitration matters.
Ramūnaȿ Audzevičius is the co-Head of the Dispute Resolution practice group in Motieka & Audzevičus’ Vilnius office. He handles the most complex arbitration and high-stake commercial and regulatory litigation cases in Lithuania as well as in foreign jurisdictions. Mr. Audzevičius specializes in the pharmaceutical, aviation, manufacturing, agricultural, energy and TMT industries. His practice involves representing clients under UNCITRAL, ICC, SCC, LCIA, MKAS, GAFTA, FOSFA and Vilnius Court of Commercial Arbitration rules.
Edward Baldwin is a Senior Associate in Milbank, Tweed, Hadley & McCloy’s Washington, D.C. office. He is a member of the firm’s Litigation and Arbitration Group. Mr. Baldwin focuses on arbitration, transnational litigation, sovereign immunity issues and enforcement of judgments and awards.
Sabrina A. Bandali is a Toronto-based attorney whose work focuses on international trade, commercial and investment arbitration, anti-corruption, and civil litigation.
Alexander Bĕlohlávek is Founder and Senior Partner of The Bĕlohlávek Law Offices in Prague. He is a Member of the International Court of Arbitration at the ICC in Paris as well as a Member of the ICC Commission on International Arbitration and a Member of the National Committee of the ICC in the Czech Republic. He has acted as arbitrator or counsel in more than 170 international arbitrations and is listed as arbitrator with the international arbitral centers of several economic chambers in Central Europe. He has published numerous books and articles on arbitration and business law.
George Bermann is the Chief Reporter of the American Law Institute’s Restatement of the U.S. Law of Commercial Arbitration. He is a member of the Academic Council of the Institute for Transnational Arbitration (ITA) and director of the AAA and member of the AAA’s panel of ICDR arbitrators. In addition, he is the Jean Monnet Professor of EU Law, Walter Gelhorn Professor of Law and Director of European Legal Studies at Columbia Law School.
Nicholas J. Birch is an Associate at the law offices of Stewart and Stewart in Washington, D.C. and is admitted to practice before New York and U.S. federal courts. Mr. Birch graduated from Georgetown University Law Center in 2010 with a JD/MBA and was a contributing case reporter to Oxford University Press’ Investment Claims. He has been involved in researching and writing on various aspects of international investment arbitration, including assisting Professors Wallace, Dugan and Sabahi of Georgetown in writing and updating Investor State Arbitration (2008), as well as co-authoring multiple articles on the subject. Mr. Birch has also written on WTO cases and has consulted on international business projects.
Peter Cameron is Director of the Centre and Professor of International Energy Law and Policy at The University of Dundee’s Centre for Energy, Petroleum and Mineral Law and Policy. He has given oral and/or written testimony in a number of international arbitration on matters concerning petroleum contracts, taxation and gas issues. Professor Cameron has extensive international experience of drafting oil, gas and energy legislation and contracts in developing countries. He is the principal point of contact for the Centre’s multi-partner project, “Good Practice in the Oil, Gas and Mining Industries”, funded by the World Bank, which began in 2010. For more than 30 years, Professor Cameron has been an adviser to the World Bank, the EBRD, the United Nations Economic and Social Commission for Asia and the Pacific, the Norwegian Petroleum Directorate, companies, NGO’s and many governments in developing countries. Professor Cameron was the leader of several European Commission funded projects aimed at promoting the signature and ratification of the Energy Charter Treaty.
Lee Caplan is an Attorney-Adviser in the U.S. Department of State’s Office of the Legal Adviser, Office of Economic and Business Affairs. He advises the U.S. Government on international investment matters, including negotiations of bilateral investment treaties and investment disputes involving U.S. nationals. He also teaches as an adjunct Professor at American University’s Washington College of Law. Before joining the U.S. Government, Mr. Caplan was an attorney in the international arbitration practice of White & Case and a law clerk at the Iran-United States Claims Tribunal and the U.S.Court of Appeals for the Fourth Circuit.
Louis-Philippe Coulombe is a Quebec-based attorney whose practice focuses on international commercial and investment arbitration. He holds a master’s degree in international law from the Geneva Graduate Institute. His professional experience includes working with the World Trade Organization and the International Centre for Settlement of Investment Disputes.
Alexandre de Gramont is a litigation Partner in and a member of Weil, Gotshal & Manges’ Washington, D.C. office. He has represented clients in a wide variety of international arbitration matters. In addition to commercial arbitration expertise, he has extensive experience in handling investor-state arbitration cases arising from bilateral investment treaties (BITs), multilateral investment treaties (including NAFTA, CAFTA-DR and the Energy Charter Treaty), and other international investment laws.
Kabir A.N. Duggal is an attorney in Curtis, Mallet-Prevost, Colt & Mosle’s New York office. He practices in their International Arbitration Group and focuses on investor-state arbitration, commercial arbitration and on issues and disputes relating to public international law. He has been involved in arbitration proceedings under the Energy Charter Treaty and United Nations Commission on International Trade Law rules in the oil, gas, cement and telecommunications industries.
Sarah M. Farnham is an attorney in Paul Hastings Washington, D.C. office. Her practice focuses on international commercial disputes including claims against sovereign nations, commercial arbitrations, energy-sector disputes and political risk insurance matters. Ms. Farnham earned a Master of Arts in International Affairs from the Johns Hopkins School of Advanced International Studies, where she concentrated on Energy and International Finance.
Daniel Flores is the Managing Director of Econ One Research in Washington, D.C. He is an economist with extensive experience in the economic analysis of damages arising from contract disputes, investment disputes, anticompetitive conduct, and intellectual property infringement. His analyses – often in complex and high-stakes cases have covered a wider variety of industries including construction materials, finance and banking, electricity, oil and gas and semiconductors.
Claudia Frutos-Peterson is an International Counsel at Curtis, Mallet-Prevost, Colt & Mosle with their International Arbitration group in the Washington D.C. office. She has represented sovereigns and State-owned entities in a number of investment treaty disputes under the ICSID Convention and UNCITRAL Arbitration Rules. She was formerly counsel at ICSID where she served as Secretary of Tribunals in numerous arbitral proceedings.
John L. Gardiner is a Partner in and co-head of Skadden, Arps, Slate, Meagher & Flom’s International Litigation and Arbitration Group. He concentrates his practice in the resolution of complex, high exposure, multijurisdictional disputes before federal and state courts as well as leading arbitral institutions. Mr. Gardiner’s extensive litigation, arbitration and mediation experience covers a wide range of disputes in the aluminum, energy, insurance/reinsurance, telecommunications, construction and finance sectors. He also has acted as arbitrator in complex international corporate disputes and as mediator in intricate corporate and partnership separation situations.
Miriam K. Harwood is a Partner in the International Arbitration group of Curtis, Mallet-Prevost, Colt & Mosle LLP in New York. Her practice focuses on investment treaty arbitration and international commercial arbitration, particularly as counsel for foreign states, state-owned entities and governmental agencies. She has acted as counsel in arbitrations conducted in the United States and abroad, and under the auspices of the ICC International Court of Arbitration, the International Centre for Settlement of Investment Disputes (ICSID) and the Stockholm Chamber of Commerce.
Kaj Hobér is a Partner of Mannheimer Swarting in the Stockholm office. Mr. Hobér is Co-Chair of the IBA sub-committee on Investment Treaty Arbitration. He is an Adjunct Professor of east European Commercial Law at the University of Uppsala and was a professor of International Law, Centre for Energy, Petroleum and Mineral Law and Policy at the University of Dundee.
Matthew S. Kronby is a Partner in Bennett Jones’ Toronto office. He practices in the area of international trade and investment law. Mr. Kronby was head of the Government of Canada’s Trade Law Bureau from 2009 until he joined Bennett Jones in 2012. During more than 15 years in the Bureau he represented Canada frequently before WTO panels and the Appellate body and led legal teams in numerous high-profile, ground-breaking trade disputes, including arbitrations on aircraft subsidies, biotech products, automotive trade and softwood lumber, and in investment arbitrations under the NAFTA.
Ben Love is an attorney in Freshfields Bruckhaus Deringer’s Paris office. He practices in the international arbitration and public international law groups. He has represented clients in a wide variety of international commercial and investment arbitrations under the ICSID, UNCITRAL, ICC and CRCICA arbitration rules. Mr. Love’s industry experience includes foreign investment, oil and gas, power and energy, mining, cement, telecommunications, geotechnology and public utilities.
Andrea Menaker is a Partner in the Washingrton DC office of White & Case. She serves as counsel in complex international arbitration cases involving contentious political issues. She has extensive experience in matters involving treaty-based claims, international investment protections, public international law, sovereign immunity, and the enforcement of foreign arbitral awards. Ms. Menaker has represented both claimant investors and respondent States in arbitrations before the International Centre for Settlement of Investment Disputes (ICSID) and its Additional Facility, the International Chamber of Commerce (ICC) and other arbitral institutions, as well as in ad hoc arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL). Prior to joining White & Case, Ms. Menaker was Chief of the NAFTA Arbitration Division for the US State Department where she represented the United States in investor-State arbitrations under the investment chapter of the North American Free Trade Agreement (NAFTA), and participated in the drafting of investment and dispute resolution provisions in United States’ bilateral investment treaties and investment chapters of free trade agreements.
Timothy G. Nelson is a Partner in the New York office of Skadden, Arps, Slate, Meagher & Flom. He represents clients in a variety of disputes involving cross-border and international law issues, including arbitration before international bodies such as the American Arbitration Association/International Centre for Dispute Resolution (ICDR), the International Chamber of Commerce (ICC), the International Centre for Settlement of Investment Disputes (ICSID) and tribunals constituted under the Arbitration Rules of the United Nations Commission of International Trade Law (UNCITRAL).
Michael Nolan is a Partner in the Washington, D.C. office of Milbank, Tweed, Hadley & McCloy and a member of the firm’s Litigation & Arbitration Group. Mr. Nolan has represented clients in U.S. federal and state courts and before arbitral tribunals in all manner of complex disputes, including general commercial, securities, antitrust, tax and insolvency cases. Mr. Nolan’s practice has a particular focus on international arbitration and transnational litigation.
Joseph Profaizer is a Partner at Paul Hastings’ Washington, D.C. office. He maintains a litigation and arbitration practice that focuses on complex international disputes. Mr. Profaizer represents public and private corporations as well as foreign sovereigns and their instrumentalities in a wide range of complex multi-jurisdictional disputes, including insurance, investment, commercial, construction, energy, employment, e-commerce, pharmaceutical, securities, and technology disputes. He has successfully represented clients in more than 50 arbitrations under the rules of the ICC, the AAA/ICDR, the LCIA, JAMS and UNCITRAL.
Romeo Rojas is an Associate at Burnet, Duckworth & Palmer LLP in Calgary, Alberta. He practices in the areas of investment and commercial arbitration and corporate/commercial litigation. Prior to joining Burnet, Duckworth & Palmer, Mr. Rojas served for seven years as a Foreign Service Officer with Foreign Affairs and International Trade Canada. His assignments included postings to the Middle East and Canada’s Trade Law Bureau, where he worked from 2006-2007.
Howard Rosen is the Senior Managing Director of FTI Consulting in Toronto. Mr. Rosen leads the global international arbitration practice for FTI Consulting. He has been involved exclusively in business valuations, damages, quantification and corporate matters since 1981.
Laurence Shore is a Partner with Herbert Smith Freehills in New York. Mr. Shore’s practice focuses on international arbitration. He has been the lead advocate in a large number of arbitration cases under, for example, the ICC, LCIA, AAA, UNCITRAL and Swiss Rules. He also has sat as an arbitrator in cases under the ICC, Cairo Regional Centre, and LCIA Rules. In addition to his work as an arbitration practitioner, Mr. Shore has tried cases in the United States courts and in England’s High Court. Mr. Shore originally joined Herbert Smith LLP in 1995, where he was one of the partners responsible for building Herbert Smith’s international arbitration practice and establishing it as a separate practice area within the firm in 2005. In 2008, he left Herbert Smith to relocate to his native USA. He is returning to the newly merged Herbert Smith Freehills from Gibson Dunn in New York, where he spent the last five years as co-head of the firm’s International Arbitration practice.
Joshua B. Simmons is an associate in the Washington, D.C. office of Covington & Burling LLP, where he is a member of the International Arbitration and Government Contracts groups. His international practice includes representation of parties in investment treaty arbitration and international commercial arbitration, as well as advice to multinational and state-owned companies on issues of public international law. The Berkeley Journal of International Law recently published his article entitled “Valuation in Investor-State Arbitration: Toward a More Exact Science”. Mr. Simmons received his law degree from the University of Virginia, where he was on the editorial board of the Virginia Law Review.
Matthew D. Slater is a partner in Cleary Gottlieb Steen & Hamilton’s Washington, D.C. office. Mr. Slater’s practice focuses on international investment-treaty and commercial arbitration. In his international arbitration and litigation practice, Mr. Slater recently acted as counsel to The Russian Federation in three parallel arbitrations under UNCITRAL Rules in The Hague brought by purported shareholders of YUKOS Oil Company. The arbitrations are thought to be the largest in the world in amount in dispute and, among other things, represent the first case against Russia that tested whether provisional application of the Energy Charter Treaty vests jurisdiction in an international arbitral tribunal constituted under the Energy Charter Treaty.
Teale Toweill is an attorney in Cleary Gottlieb Steen & Hamilton LLP’s Washington, D.C. office. Her practice focuses on International Arbitration and Litigation, including representing several sovereigns in arbitration and enforcement proceedings. She is a member of the defense team for the Russian Federation in various arbitrations relating to the former Yukos Oil Company, including recent proceedings under UNCITRAL Rules in The Hague. Ms. Toweill received her JD from Harvard Law School in 2008, and in 2009 received an LLM in Public International Law from the University of Auckland in New Zealand.an attorney in Cleary Gottlieb Steen & Hamilton’s Washington, D.C. office.
Wayne Wilson is a Managing Director at UHY Advisors in their Houston office. He has provided consulting services and expert testimony to international clients in the areas of finance, organizational management, accounting, statistics and risk management. His expertise in the petroleum industry includes crude and natural gas valuation, product valuation, pricing of and accounting for production, severance/conservation/ad valorem taxes, valuation of energy companies, accounting for joint interest billing, etc. Mr. Wilson has provided forensic analysis to several trading organization in which he has evaluated risk management, internal control structures, management decisions and strategies, accounting application, and reorganization efforts.
Alexander Yanos is a Partner with Freshfields Bruckhaus Deringer in their New York office. He specializes in litigating and arbitrating commercial, financial and treaty-based disputes. Mr. Yanos also acts for clients in disputes involving sovereigns, and he speaks six languages. He acts as arbitration counsel in matters before the ICSID, ICC, LCIA, AAA, HKIAC, Inter-American Commercial Arbitration Commission, International Court of Justice and Stockholm Chamber of Commerce.
Schedule
8:30 – 9:00 Registration
Coffee and Tea upon Arrival
9:00 – 9:15 Opening Remarks by Conference Co-Chairs
Ian A. Laird, Todd Weiler, Borzu Sabahi and Frédéric Sourgens
9:15-10:45 Session 1 – The Energy Sector, Investment Arbitration and the ECT: Carving out a Special Regime?
Moderator: Alexander Yanos
Authors: Kabir A.N. Duggal, Teale Toweill
Panel: John L. Gardiner, Andrea Menaker, Laurence Shore, Peter Cameron, Alexander Bĕlohlávek
This panel addresses whether the energy sector should be covered by a special investment dispute regime or by bilateral investment treaties and free trade agreements of a general nature. One author will submit that, as a general rule, the investments made in the energy sector are not the same as other kinds of investments protected by bilateral and multilateral investment agreements. Accordingly, this author will argue that only an exclusive and specialized regime should apply to international energy disputes, like the Energy Charter Treaty (ECT). The second author will argue that the exclusion of energy disputes from bilateral investment treaties is incongruous with the history of bilateral investment treaties. The role of national security in the energy sector will play a key part in this debate, in particular when energy projects are purchased by a foreign sovereign or related state enterprise.
10:45-11:00 Coffee/ Tea Break
11:00-12:30 Session 2 – Energy Contracts and BITs – Is it Fair and Equitable to be under the Umbrella?
Moderator: Michael Nolan
Authors: Sabrina Bandali, Louis-Philippe Coulombe
Panel: Kaj Hobér, Romeo Rojas, Claudia Frutos-Peterson, Ben Love, Matthew Kronby
In the energy sector in particular, many obligations of the state to the investment are spelled out in the project documents. A claim that the host state has violated a BIT will frequently be premised upon state actions that are inconsistent with the commitments made by state entities in these underlying agreements. Originally such claims were advanced by means of umbrella clauses. But more and more tribunals are using the fair and equitable treatment protection to make actionable the same conduct in instances in which the application of an umbrella clause would be controversial. Our first author will outline the case in favor of such incorporation of contractual commitments in project documents in the reasonable investment-backed expectations of the investor protected by fair and equitable treatment provisions. The other author will argue that such a use of the fair and equitable treatment clause in treaties is an impermissible introduction of an umbrella clause by the backdoor in situations in which such clauses are facially inapplicable.
12:30-13:45 Lunch
KEYNOTE SPEAKER: David Haigh
13:45-15:15 Session 3 – Multiparty Investor Disputes in the Energy Sector – Preclusion, consolidation, or free-for-all?
Moderator: Matthew Slater
Authors: Edward Baldwin, Sarah Farnham
Panel: Joseph R. Profaizer, Ramunas Audzevicius, George Bermann, Lee Caplan, Alexander Bĕlohlávek, Alexandre de Gramont
A frequent issue in investor-state arbitrations in the energy sector is that multiple parties have rights of action against the state and its state enterprises with regard to the same state measures impairing the value of a single project. For example, a project company may have a right of action against a state-owned company under a concession agreement or a PPA, the parent of the project company may have the ability to claim under a BIT, further shareholders and lenders of the parent company may have claims under a different set of BITs or foreign investment laws. One author will argue that absent consolidation of the various different proceedings, treaty actions should be stayed until resolution of the contractual claim, and that the factual findings of the contract tribunal should be treated as preclusive on later BIT tribunals. The other author will argue that any such stay, issue preclusion or claim preclusion would result in annullable error on the part of the tribunal imposing it. Rather, the rights of the respective stakeholders must be determined individually in light of the specific treaty instruments in play to give effective access to justice to all participants in the project.
15:15- 15:30 Coffee/ Tea Break
15:30- 17:00 Session 4 – Measure by Measure? Calculating Damages in Energy Disputes
Moderator: Timothy G. Nelson
Authors: Nicholas J. Birch, Joshua Simmons
Panel: Howard Rosen, Wayne Wilson, Miriam K. Harwood, Daniel Flores, Stephen P. Anway
This panel will discuss the problem of assessing damages in international energy sector disputes. It will focus particularly on the ability of investors to recover non-contractual damages in BIT arbitrations. In particular, one author will argue that appropriate damages models in investor-state arbitrations allows investors to recover impairment values not covered by indexing clauses typical in many energy deals. The other author will argue that damages in all instances must be limited by reference to reasonable indexing at the time the relevant project contracts were formed.
17:00- 18:00 Conclusion and Cocktail Reception
Accommodations
Grand Hyatt Washington, 1000 H Street NW, Washington, DC 20001
Rooms have been blocked for the nights of Sunday, April 21 and Monday, April 22. Reservations can be made by calling the Grand Hyatt’s Central Reservations at 1-888-421-1442. Guests must refer to Juris Conferences – Seventh Annual Investment Treaty Arbitration conference when making their reservations in order to receive the group rate. Click Here to make your reservations online with the Juris group rate.
Rooms must be reserved by Thursday, March 21, 2013 in order to receive the group rate.
The rate for Single or Double Occupancy is $379.00 per night. State and local taxes and hotel fees are additional.
