Renaissance Mayflower Hotel, 1127 Connecticut Avenue, NW Washington DC 20036
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Program Information
New Developments in Investment Treaty Arbitration: A Return to Fundamentals?
The Eighth Annual Juris Investment Treaty Arbitration Conference will address the latest developments in investment treaty with a focus on the fundamental issues that have drawn some of the greatest controversies in the jurisprudence over the past few years. Our four panels will cover the cutting edge issues relating to the procedural, jurisdictional, substantive law and remedies elements of investment treaty arbitration.
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:
- Challenges to Arbitrators: Should the challenge process be overhauled?
- New Developments in Definition of “Investment”: what is the role of the Concept of “Property” in Investment Arbitration?
- Is Investment Treaty Arbitration a Mechanism to Second-guess Governments’ Exercise of Administrative Discretion: Public Law or Lex Investoria?
- Awarding Damages: Proportionality, Contributory Fault, and Arbitral Tribunals’ Discretion or Toss of a Coin?
Our expert faculty will then continue the debate following the original contributions from our authors for what always proves to be highly entertaining discussion and one that is of great value to practitioners and academics alike who are interested in these important issues.
Registration
*This rate is for Full-Time Academics, Full-Time Government Employees, and Full-Time In-House Corporate Counsel ONLY.
Co-Chairs
Ian A. Laird is a Partner in the International Dispute Resolution Group of Crowell & Moring’s Washington, D.C. office. He currently represents clients in international investment disputes involving issues in the energy and natural resources sector. Mr. Laird is serving as an Adjunct Professor at the Georgetown University Law Center teaching a seminar on the influence of public international law on investment treaty arbitration He is the co-founder and Editor-in-Chief of Investmentclaims.com.
Borzu Sabahi is an Attorney in Curtis, Mallet-Prevost, Colt & Mosle LLP. He currently represents sovereigns in international arbitration disputes in various fields including energy, telecommunication, and construction. He has served as counsel and expert in cases brought under a number of investment treaties and rules including UNCITRAL, ICSID, ICC, and LCIA. He is an adjunct professor at Georgetown Law Center teaching seminars on investor State arbitration and international oil and gas development.
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
George Kahale III has been chairman of Curtis, Mallet-Prevost, Colt & Mosle LLP since 2008, when the position was created after he served 15 years as the firm’s Managing Partner. He maintains an active practice in both international transactions and international arbitration. Mr. Kahale has acted as lead counsel in some of the world’s largest and most publicized transactions and infrastructure projects in the international petroleum industry, representing energy ministries and national oil corporations in many oil and gas producing countries. He also has been lead counsel in several of the world’s largest international arbitrations. In 2013, he was selected by the Burton Awards as a Distinguished Legal Writing Award winner for his article entitled: “Is Investor-State Arbitration Broken?”
Faculty
Meriam Alrashid is a U.S.-qualified counsel in the International Dispute Resolution Group of Crowell & Moring in Washington, D.C. and London where she focuses on international investment and commercial arbitration and risk management, covering various industries across the globe. Her experience includes participation in arbitrations before the ICDR, UNCITEAL, ICC, and the ICSID. She has served as counsel in disputes and transactions involving parties from such countries as Libya, South Korea, Ireland, and Rwanda.
Paul Barker is an Associate in Cleary Gottlieb Steen & Hamilton’s London office. His practice focuses on international arbitration, investment treaty arbitration and international litigation. He has represented sovereign governments and corporations in both commercial and public international law disputes before international tribunals. Mr. Barker also advises on sovereign immunity, banking and finance, and general commercial disputes
Julie Bédard is a Partner in Skadden, Arps, Slate, Meagher & Flom’s New York office. She concentrates her practice on international litigation and arbitration and regularly advises clients on the drafting of dispute resolution clauses. Ms. Bédard received the “Best in Commercial Arbitration” Euromoney Women in Business Law Award in 2012 and 2013. She also was named by the World Economic Forum to the 2013 “Young Global Leaders” and was selected among the “Inspiring Women in Law” by Latin Lawyer in November 2013.
Alexander Bĕlohlávek is Founder and Senior Partner of The Bĕlohlávek Law Offices in Prague. He has acted as arbitrator or counsel in more than 170 international arbitrations and 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 Member of the National Committee of the ICC in the Czech Republic.
Amal Bouchenaki is Counsel in Herbert Smith Freehill’s New York office. Ms. Bouchenaki is a dual national of France and Algeria and is qualified as a French avocat and a California attorney. She specializes in international arbitration and acts as counsel in complex treaty based proceedings and international commercial arbitrations conducted under a variety of arbitration rules, including UNCITRAL, ICC, LCIA, ICDR, CIRCICA, HKIAC, VIAC and ICSID. Trained in both the civil law and common law systems, she has handled disputes involving an array of issues and industry sectors, including, technology, telecommunications, and energy-related disputes.
Mark N. Bravin is a Partner and global co-chair of the international arbitration practice of Winston & Strawn in Washington, D.C. He focuses his practice on international dispute resolution and international trade. Mr. Bravin’s clients include both private parties and sovereign governments appearing before U.S. courts or international arbitral tribunals. He has handled international arbitration involving long-term supply contracts, oil field concessions, power projects, banking, engineering, shipping, distributorships and joint ventures, procurement and construction contracts, licensing agreements, and services agreements.
Kate Brown de Vejar is Counsel in the International Arbitration group of Curtis, Mallet-Prevost, Colt & Mosle LLP and is based in the firm’s Mexico City office. Her practice focuses on investor-State and international commercial arbitration, with a particular emphasis on construction and engineering, oil and gas, and mining disputes. Ms. Brown de Vejar is a member of the Australian Delegation to UNCITRAL Working Group II, recently charged with revising the UNCITRAL Arbitration Rules and developing the UNCITRAL Rules on Transparency in treaty-based investor-State arbitration.
Julián Cárdenas Garcia is a Venezuelan attorney and Doctoral Fellow at the Research Center on Investment and International Trade Law (CREDIMI) at the University of Bourgogne, Dijon, France. Prior to this position, he served as career diplomat at the Venezuelan Ministry of Foreign Affairs for nearly six years, working on sovereign boundary issues and multilateral affairs related to the Organization of American States and the United Nations. He is currently a Visiting Assistant professor, Andrews Kurth Energy Law Scholar, at the University of Houston Law Center where he teaches the courses transnational Petroleum Law in Latin America as well as International Investment Law. His research focuses mainly on three issues; international investment arbitration, best practices in the petroleum industry and transnational petroleum law.
Tina Cicchetti is Counsel in Fasken Martineau’s Litigation and Dispute Resolution Group in Vancouver. Her practice focuses on arbitration in both domestic and international commercial arbitration and investment arbitration. She has been involved in a number of arbitrations either as sole arbitrator, counsel or tribunal secretary in a wide range of matters, including mergers and acquisitions, shareholder disputes, construction and distribution agreements. She routinely advises clients on the drafting of arbitration clauses and strategic options available in commercial and investment arbitration.
Paolo Di Rosa is a Partner and Head of Arnold & Porter’s international arbitration practice in Washington, D.C. His practice centers on international arbitration and litigation matters, including disputes between investors and states under investment treaties, in particular disputes before the ICSID. He represents private sector companies as well as States in international arbitrations and litigation matters.
James Egerton-Vernon is a Special Legal Consultant in Jones Day’s Washington, D.C. office. His practice is focused on investor-state and commercial arbitration disputes. He has acted in several international arbitrations under the ICSID, ICC, UNCITEAL, SCC, and SIAC rules. Mr. Egerton-Vernon has particular experience in the oil, mining, gas, telecommunications, and construction sectors.
Timothy Foden is a Senior Associate in Quinn Emanuel’s London office. His practice focuses on investor-treaty and high value commercial arbitration in the hospitality and commodities sectors. He has represented dozens of investors in bringing claims against governments under the Energy Charter Treaty and various bilateral investment treaties. Mr. Foden has extensive experience in the enforcement of commercial and ICSID arbitration awards in the courts of the United States, the United Kingdom and Belize. And has acted in proceedings under the ICSID, UNCITRAL, LCIA, SCAI and ICDR arbitration rules.
George K. Foster is an Associate Professor of Law at Lewis & Clark Law School. His research interests lie primarily in legal issue relating to foreign investment, international arbitration, the rights of indigenous peoples, and sovereign immunity. Prior to joining the faculty of Lewis & Clark Law School, professor foster was a partner in the international law firm Dechert LLP based in its New York office. He represented clients in court litigation in California, New York and the District of Columbia, and in arbitrations around the world under the rules of most of the major arbitration institutions.
John Y. Gotanda is the Dean of Villanova University School of Law. His scholarly interests focus on damages in international law and international commercial arbitration. He has served as an expert on damages for parties involved in international disputes, including high-stakes investment treaty arbitration between multinational companies and governments, as well as disputes involving the United Nations Convention on Contracts for the International Sale of Goods. His scholarly writings have been cited by courts, tribunals and commentators and arbitral panels deciding transnational contract disputes and investment tribunals deciding cases under the rules of the International Centre for Settlement of Investment Disputes (ICSID).
Jonathan S. Kallmer is a counsel in Crowell & Moring’s International Trade and International Dispute Resolution groups and is based in the firm’s Washington, D.C. office. His practice focuses on helping companies use international trade and investment agreements and other policy tools to overcome regulatory and market access barriers and enforce their rights in foreign markets. He plays a leading role in the firm’s Global Investment Strategy Practice, developing strategies to mitigate the regulatory, policy, and geopolitical risks that companies face when operating overseas. Mr. Kallmer was formerly deputy assistant U.S. trade representative and co-chaired the United States’ BIT program.
Joshua Karton is an Assistant Professor in the law faculty of Queen’s University in Kingston, Ontario, Canada. He teaches and writes about international arbitration, comparative and international commercial law, and international uniform law, often from a sociological perspective. Professor Karton is the author of The Culture of International Arbitration and the Evolution of Contract Law published in 2013.
Matthew S. Kronby is a Partner in Bennett Jones’ Toronto office. He practices in the areas of international trade, investment and foreign business transactions and compliance. Mr. Kronby represents clients in matters relating to the WTO, the NAFTA and other trade agreements, investment treaties, export controls, trade sanctions and foreign corrupt practices. Before joining Bennett Jones he was head of the Government of Canada’s Trade Law Bureau from 2009 to 2012 and previously served in the Bureau as a manager and legal counsel for more than 15 years.
Pablo D. López Zadicoff is a Vice President with Compass Lexecon. Previously with LECG’s International Arbitration practice, Mr. López Zadicoff has 10 years of experience consulting for and providing economic, regulatory and financial analysis used in expert testimony and dispute resolution mechanisms. He has been involved in more than 40 international arbitration proceedings, as well as in several consultancy projects. He has designed and led teams in charge of implementing customized evaluation models for more than 50 assets from diverse industries located all around the world.
Juan Felipe Merizalde Urdaneta is a Special Legal Consultant in Dechert’s Washington, D.C. office. He focuses his practice on private law and international arbitration matters. He frequently advises on international disputes involving Spanish and Latin American parties. Previously he served as an intern for the ICC International Court of Arbitration.
Caline Mouawad is a Partner in King & Spalding’s International Arbitration Group in the New York office. She concentrates her practice on international arbitration and is involved in complex arbitrations in a variety of sectors including oil and gas, energy, telecommunications and mining. Her experience includes arbitrations involving claims and disputes in Europe, the CIS, Latin America, North Africa, and the Middle East, relating to such areas as public and private international law issues, bilateral investment treaties, breach of contract, financial transactions, and privatization agreements.
Craig Miles is a Partner in King & Spalding’s International Arbitration Group in the Houston office. His practice focuses on representing foreign investors in disputes with host governments, primarily before the World Bank’s ICSID and private parties in commercial disputes before the ICC, AAA, and other domestic and international arbitral institutions. He has particularly strong experience in bilateral investment treaty disputes in the oil and gas sector and in Latin America. In 2011, Mr. Miles was named to Global Arbitration Review’s “45 Under 45” listing of the world’s leading international arbitration practitioners under the age of 45.
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 National 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.
Eloïse Obadia is a Partner in Derains & Gharavi’s Paris office. Before joining Derains & Gharavi, she was Senior Counsel and Team Leader at the International Centre for Settlement of Investment disputes (ICSID). From 1997 to 2013, she has served as Secretary of the Tribunal in more than 60 arbitral proceedings brought under the ICSID Convention, the ICSID Additional Facility Rules and the United Nations Commission on International Trade Law (UNCITRAL) Rules. While at ICSID she regularly appeared as a speaker and gave training on investment arbitration.
Sirshar Qureshi is the forensic services leader for PricewaterhouseCoopers in central and Eastern Europe, Russia and CIS. He specializes in forensic services for more than 16 years and his experience covers many aspects of accounting and financial matters, including loss of profits claims, construction claims, claims arising following acquisitions and sales of business, insurance claims, fraud prevention, integrity due diligence and financial investigation.
Charles E. Roh is a Partner in Weil, Gotshal & Manges’ Washington, D.C. office. He concentrates his practice in international trade and international investment matters. Mr. Roh has served as party counsel in seven investor-state treaty arbitrations and more than 25 dispute settlement proceedings under the WTO and GATT, and has been outside counsel to business, associations and governments in bilateral regional and WTO negotiation. He served as Assistant US Trade Representative for North America from 1989 to 1994, where he was also the Deputy Chief Negotiator of the North American Free Trade Agreement (NAFTA) for the United States.
Charles B. Rosenberg is an Associate in the White & Case’s International Arbitration Practice Group. He specializes in the representation of foreign sovereigns and privates parties in complex international cases. Mr. Rosenberg has experience representing clients in disputes before the International Centre for Settlement of Investment Disputes (ICSID) and the International chamber of Commerce (ICC). Prior to joining White & Case, he worked as the International Arbitration Law Clerk for The Honorable Charles N. Brower in London, England and as a Legal Adviser at the Iran-United States Claims tribunal in The Hague, the Netherlands.
Margarita R. Sanchez is a Senior Associate in the international arbitration and Latin America practice groups of Arnold & Porter in Washington, D.C. She is ranked by Chambers Global as one of the world’s leading lawyers in the United States and Colombia. Ms. Sánchez concentrates her practice on the representation of sovereign states and corporate clients in complex international arbitration disputes, litigation proceedings and Latin American legal matters. She also focuses her practice on global anti-corruption matters in a wide variety of industry sectors and countries. Previously, she served as Consultant for the Inter-American Development Bank (IDB), in Washington, D.C. where she participated in investigation of allegations of fraud and corruption occurring in activities financed by the IDB Group. Ms. Sánchez is a civil and common law trained lawyer.
Matthew D. Slater is a Partner in Cleary Gottlieb Steen & Hamilton’s Washington, D.C. office. His practice focuses on international investment-treaty and commercial arbitration. In his international arbitration and litigation practice, Mr. Slater often represents foreign sovereign governments. He frequently writes and speaks on international litigation and arbitration issues. And has addressed topics involving arbitration of complex energy disputes, enforcement of international arbitral awards, the Energy charter Treaty, and investment treaty arbitration.
Fernando Andrés Tupa is an Associate in the International Arbitration group of Curtis, Mallet-Prevost, Colt & Mosle’s New York office. His practice focuses on international arbitration and litigation in the oil and gas, telecommunications and cement sectors. He has experience with International Centre for Settlement of Investment Disputes (ICSID), International chamber of Commerce (ICC), United Nations Commission on International Trade Law (UNCITRAL) and ad hoc arbitration proceedings.
Janet M. Whittaker is counsel at Simpson Thacher & Bartlett LLP and is a member of the firm’s Litigation Department. Her practice focuses on international arbitration and litigation. She has acted as counsel in commercial and investment treaty arbitrations under the major arbitration rules and ad hoc. Ms. Whittaker previously served as Legal counsel at the International centre for Settlement of Investment disputes (ICSID) at the World Bank. In her role at ICSID, she was responsible for cases brought under bilateral and multilateral investment treaties and national investment laws in Asia, Latin America and North America.
Schedule
8:00 – 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 – Challenges to Arbitrators: Should the challenge process be overhauled?
Moderator | Matthew Slater
Authors | Fernando Tupa, Charles Rosenberg
Panel | Julie Bédard, George K. Foster, Kate Brown de Vejar, Alexander Bĕlohlávek, Amal Bouchenaki
There has been a recent increase in the challenges of arbitrators in investment arbitration, with more challenges apparently succeeding than ever before. What does this say about the arbitrator challenge process in investor-state arbitration? Is change needed? Our two authors take positions for and against the proposition that the current arbitrator challenge process in investment arbitration should be completely overhauled. What potential alternatives could appear in its place will be addressed by our authors as well.
10:45 – 11:00 Coffee / Tea Break
11:00 -12:30 Session 2 – New Developments in Definition of “Investment”: what is the role of the Concept of “Property” in Investment Arbitration?
Moderator | Michael Nolan
Authors | Timothy Foden, Margarita Sánchez
Panel | Tina Cicchetti, Julián Cárdenas Garcia, Eloïse Obadia, Paolo Di Rosa, Charles Roh
Recent jurisprudence and commentary has revisited basic elements of the notion of property and questioned whether concepts such as “bundle of rights” used to refer to those elements have any place in international law. Our two authors address current developments in the definition of “investment” in investment treaty arbitration and, in particular, address the issue – what sorts of property interests are, or ought to, be protected by the full protection and security obligation? Our first author takes the position that only protection of traditional physical property should be protected, while our second author supports the proposition that the term “investment” includes the protection of a wider scope of economic rights.
12:30 – 13:30 Lunch
13:30 – 13:45 Keynote Speaker – George Kahale III
13:45 – 15:15 Session 3 – Is Investment Treaty Arbitration a Mechanism to Second-guess Governments’ Exercise of Administrative Discretion: Public Law or Lex Investoria?
Moderator | Timothy Nelson
Authors | James Egerton-Vernon, Paul Barker
Panel | Joshua Karton, Caline Mouawad, Jonathan Kallmer, Janet Whittaker, Matthew Kronby
Both jurisprudence and scholarship in international investment law increasingly take the view that international investment law is a form of international public law. Occidental v. Ecuador is one recent decision using principles of administrative law to determine the limits of appropriate administrative discretion. Other tribunals have referred to the host governed margin of appreciation to similar ends. One author will argue in favor of this public law approach – with one party (the state) given administrative law deference, and the other party (a foreign investor) whose every decision will be scrutinized to determine the legitimacy of its expectations. The second author will argue for an alternative conception of investment law as lex investoria that draws upon the private law roots of the lex mercatoria.
15:15 – 15:30 Coffee / Tea Break
15:30 – 17:00 Session 4 – Awarding Damages: Proportionality, Contributory Fault, and Arbitral Tribunals’ Discretion or Toss of a Coin?
Moderator | John Gotanda
Authors | Meriam Alrashid, Juan Felipe Merizalde Urdaneta
Panel | Craig Miles, Mark Bravin, Pablo D. López Zadicoff, Sirshar Qureshi
Arbitral tribunals often exercise discretion in order to quantify damages. The effect of this practice is particularly visible when they apply principles setting limits on the amount of compensation, such as through the application of contributory fault. In 2012, for example, Occidental v. Ecuador reduced damages by 25% due to claimants’ fault to US$1.7 billion. More recently, in Al-Kharafi v. Libya, the tribunal exercising discretion reduced damages by about 60% to US$900 million. Some may argue that this practice will create uncertainty and raise the fundamental question as to the extent to which the quantum of damages should be determined with precision and what role arbitral discretion should play in such determinations. One author will argue that investment arbitration needs a more principled and precise approach to quantum determination, particularly in mega cases like Occidental and Al-Kharafi. The other author will argue in favor of the status quo such that the present system and applicable legal principles are adequate for damages determinations.
17:00 – 18:00 Cocktail Reception
Accomodations
Renaissance Mayflower Hotel
Rooms have been blocked for the nights of March 27 and March 28, 2014 at the Renaissance Mayflower Hotel at the rate of $269.00 per room per night plus applicable taxes and fees.
Reservations must be received on or before March 6, 2014 to receive the preferred conference rate.
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1-88-212-5752 or 1-202-347-3000
*Refer to Juris Conferences Room Block, March 27-28, 2014
