EFILA Investment Treaty Arbitration Academy 2017: 17-22 July (Rotterdam)

The EFILA Investment Treaty Arbitration Academy is designed to provide in-depth knowledge on all relevant aspects of investment treaty arbitration.

The Academy is specifically designed for Government officials and practitioners who already have some knowledge of and experience with investment treaty arbitration law. Highly-qualified post-graduate students and Ph.D. candidates with prior specialization in international investment law may also be considered.

The Academy’s 2017 Session will run from Monday, 17 July 2017 until Saturday, 22 July 2017, afternoon.

The Program

  • Introduction into investment treaty arbitration
  • Procedural aspects of investment treaty arbitration
  • Enforcement and recognition of awards
  • The impact of EU law on investment law and arbitration
  • Contemporary issues of investment law and arbitration
  • Mock Arbitration

The Lecturers

  • Gloria Alvarez, University of Aberdeen
  • Andrew Canon, Herbert Smith Freehills
  • Lukasz Gorywoda, VVGB Advocaten
  • Veronika Korom, Bredin Prat
  • Nikos Lavranos, EFILA, NL-investmentconsulting
  • Gerard Meijer, NautaDutilh
  • Loukas Mistelis, Queen Mary University of London

 

Admission requirements

  • Applicants must have completed a degree in law, economics or political science, preferably supplemented by post-graduate degrees (LLM, Ph.D.).
  • Applicants should preferably possess at least one year of professional experience in investment treaty arbitration or a related field (lawyer, diplomat, export industry representative, trade economist, civil servant, etc.). Exceptions to this rule may be granted upon reviewing individual applications.
  • Applicants must demonstrate outstanding academic ability and provide credible references bearing witness to their professional abilities.
  • Applicants are expected to have a strong command of English (both oral and written) and should be ready to read a large amount of material in English both prior to and during the Academy.

Application

To apply, please submit all your supporting documents as one PDF file, except the photo, in the following order:

  • the 2017 EFILA Academy Application form DEF1
  • an up-to-date Curriculum Vitae.
  • a personal statement explaining your interest in the program (max. 1 page, typewritten, in English).
  • certified copies of diplomas and transcripts (accompanied by a translation in English, if necessary).
  • proof of strong command of English language (e.g. TOEFL or EELTS test results) should be provided.
  • If you are a post-graduate student or Ph.D. candidate and wish to enjoy the special fee: a proof of enrolment from your university in 2017 is required.
  • If you are a Government official or employee of an International Organization and wish to enjoy of the special fee: a document certifying your current affiliation is required.
  • a colour photograph in JPG file format with a resolution of 120 KB minimum, should be added separately.

These documents must be submitted to: EFILAAcademy@gmail.com

With the exception of the photograph, all materials submitted must be included in one single PDF document.

The deadline for submitting your application is 1 June 2017. The Selection Committee will base its decision on the fulfilment of the admission criteria and the documents submitted along with the application.

Applicants will be notified of the Selection Committee’s decision regarding their application by 19 June 2017.

Upon receipt of the notification of acceptance, applicants are encouraged to immediately begin their hotel and travel arrangements as well as any necessary visa applications.

Participation of the Academy Session depends on prior payment of the tuition fee, which must be received by the Academy before 3 July 2017.

Registration fees

The tuition amounts to EUR 1,000,- for applicants affiliated with a university, with a Government or International Organization (subject to providing proof), and EUR 1,500 for practitioners.

Cancellation policy

Cancellations prior to 23 June 2017 are free.

Cancellations after 23 June 2017 will entail the payment of 50% of the applicable registration fee, i.e., EUR 500,- or EUR 750,- respectively.

Cancellations after 3 July will entail the payment of 100% of the applicable registration fee, i.e., EUR 1000,- or EUR 1,500,- respectively.

Attendance

Participants admitted to attend the 2017 Arbitration Academy will be expected to attend all lecturers and the final mock arbitration in their entirety. All participants will be assessed (and a receive passing grade). Upon successful completion of the whole Session, participants will receive a Certificate of Attendance. However, if an Academy participant is absent for one or more lectures without acceptable justification, he/she will be precluded from receiving a Certificate of Participation at the end of the Session. All participants should evaluate the

Website

Applicants admitted to attend the program consent to have their photograph and curriculum vitae posted on the Academy’s website. In addition, all participants in the Academy’s 2017 Session consent to have photos or videos taken during the course of the program published on the Academy’s website.

Practical Information

  • Accommodation

The EFILA Academy does not provide for any travel or accommodation.

Participants are required to make all the necessary travel and accommodation arrangements themselves, as well as any necessary visa application.

  • Location

All Academy Lectures will take place at the offices of Nauta Dutilh in Rotterdam.

The address is: Weena 800, 3014 DA Rotterdam:

https://www.nautadutilh.com/en/our-firm/offices/rotterdam/

The NautaDutilh office is located directly at the Rotterdam central station.

Rotterdam can be easily reached with international trains as well as by air via the Rotterdam-The Hague airport and Schiphol airport Amsterdam.

  • Programme

The precise programme will be provided in advance of the Session to all admitted participants.

Up-dated information about the programme will also be published on the EFILA website:

http://efila.org/home/efila-academy/

  • Dress Code

Casual business attire during the Lectures. However, please note that formal business attire is required for the mock arbitration.

  • Language

All Lectures will be taught in English.

  • Contact

For further information, please contact Prof. Dr. Nikos Lavranos, LLM, Secretary General of EFILA at: n.lavranos@efila.org

Norton Rose Fulbright and EFILA: Investor-State Disputes, What Will Change Post-Brexit?

by Cara Dowling, Norton Rose Fulbright (London)*

On Wednesday 29th March 2017, the UK government triggered Article 50 formally beginning the process of withdrawing the UK from the European Union. On that historic day, the London office of Norton Rose Fulbright and EFILA co-hosted a panel discussion with distinguished experts from industry, trade policy and investment treaty arbitration to discuss the impact of Brexit.

Deborah Ruff, international arbitration Partner at Norton Rose Fulbright chaired the discussion, which centred on such topics as what would change post-Brexit for trade, foreign direct investment and investor-state dispute settlement. The panel was comprised of Chris Southworth, Secretary General of the ICC UK, Norah Gallagher, Academic Director, Energy and Natural Resources Law Institute and EFILA board member, Ali Malek QC of 3 Verulam Buildings, and Milagros Miranda Rojas, special advisor on WTO and International Trade, Norton Rose Fulbright.

The evening quickly turned into a lively and engaged discussion amongst the panellists each of whom offered a unique perspective on the impact of Brexit from their respective fields of expertise. Members of the audience, many of whom hailed from different European countries and/or represented companies with a global or pan-European footprint, also passionately engaged with the panel, offering their own thoughts on both the issues and possible outcomes.

There was a general consensus that negotiating Brexit and future trade deals between the EU and UK would be complex not least because negotiating positions will be influenced by factors beyond simple economic considerations. The mood however was generally positive with all expressing a hope for constructive discourse leading to a trade agreement or at least an investment agreement providing states and foreign direct investors with effective dispute resolution mechanisms.

The session was, somewhat reluctantly, brought to a close, allowing panel members and guests to enthusiastically continue the conversation and debate over networking drinks on Norton Rose Fulbright’s terrace overlooking Tower Bridge. Thank you to all who participated in this thought-provoking evening.


Cara Dowling, Senior knowledge lawyer, Norton Rose Fulbright, London

Arbitration in Iran: With Focus on International Commercial Arbitration (Part II)

Nasim Gheidi & Parham ZahediGheidi & Associates

(See Part 1 of this post here)

Part two – Article 139 of Iranian Constitutional Law, a fundamental challenge in arbitrability

In case the national law of the place of arbitration or the law of the state where award enforcement is being sought imposes a restriction on referring to arbitration either regarding the subject matter of the dispute or against a party, it is quite likely that an award would be vacated by the national court on the grounds that the dispute was not capable of arbitrability in the first place. Courts often refer to “public policy” as the basis of such restriction. Thus, the issue of arbitrability is of great importance in determining whether to refer a dispute to arbitration from the beginning stage of contract execution.

In this regard Iranian law is faced with some ambiguous provisions, requirements of which might be quite discouraging for foreign companies hoping to invest in Iran as most of them are more willing to refer their disputes to arbitration rather than Iranian domestic courts. A very fundamental challenge in arbitrability lies in Article 139 of the Iranian Constitution Law that mandates as follow:

“The settlement of claims relating to public and state property or the referral thereof to arbitration is in every case contingent on the approval of the Board of Ministers, and the Parliament must be informed of these matters. In cases where one party to the dispute is a foreigner, as well as in important domestic cases, the approval of the Parliament must also be obtained. Law will specify the cases which are considered to be important.”

In line with above-said Article 139, Iranian Civil Procedural Law establishes the exactly same restriction in terms of arbitrability.  Legal scholars and professionals with their interpretation are trying to limit the applicability scope of above-said provisions.

In this article first a distinction line will be drawn between state entities and the properties belonging to those entities and then we will discuss which properties are considered as public and state property under Iran legal system.

One shall differ between subjective arbitrability and objective arbitrability. Subjective arbitrability refers to the restrictions relating to the parties to the dispute. For example, in some jurisdictions, states or state entities may not be allowed to enter into arbitration agreements at all or may require a special permission.  However, objective arbitrability restrictions, which are based on the limitations imposed on subject matter of the dispute are even more challenging. In other words, certain subject matters may have the potentials to threaten public policy or national interest so that they should be dealt only by national courts or be referred to arbitration under certain conditions. The restriction that Art. 139 imposes on the arbitrability is of the objective nature and applies to the subject matter of the dispute not the parties to the dispute. Therefore, it could be said that Iranian state entities can be a party to an arbitration proceeding without a need to obtain approval from the Board of Ministers or the Parliament as far as the dispute is not related to or arising out of state or public properties.

Despite the fact that state and public properties are referred to under Iranian Constitutional Law, and Civil Procedural Law, they are not yet subject of a Parliamentary enacted provision. Hence, to reach a definition on the terms public or state properties under Iranian legal system, we must refer to some executive bylaws and commentaries. Based on some Iranian scholars’ opinion, public properties are owned by the entire people and they do not have a specific owner and can be utilized by the entire people. Furthermore, they cannot be sold or seized by an order, judgment or award. They include mineral resources, jungles, mountains, roads, bridges, etc. Also it should be noted that public properties are ruled by the state to be used as public good. Therefore, such properties cannot be either owned or notarized.

The Executive Bylaw on State-Owned Properties adopted in 1993 and adjusted in 1995 by the Council of Ministers defines state properties as “those which are bought by ministries and the state-agencies or possessed by the state through any other legally permitted manner”. Accordingly, in contrast to public properties, state-owned properties can be sold, rented out or mortgaged. However, in order to determine the scope of this definition of state properties according to one interpretation, it shall be distinguished between the properties that the state is possessing in its sovereign capacity or in its contractual capacity. Based on this doctrine, which was first proposed by French scholars, only properties in possession of government in its sovereign capacity shall be considered as state properties. In fact, when state-owned entities are acting in their contractual capacities, they shall be treated like any other private entities running their businesses.

Iranian courts have different opinions in this regard. However, there is a positive trend to limit the scope of state properties definition. According to a verdict of a branch in Tehran Public Court, “properties that are subject of Art. 139 of Constitutional Law are confined to the properties that the government has possessed while acting in its sovereign capacity, like properties of national army or , rather than properties that the government has possessed in its contractual capacity. In general, actions undertaken by the government in its contractual capacity and the properties thereof like those of national Shipping Company are out of the scope of article 139 of Constitutional Law.”

Furthermore, in an arbitration proceeding in Arbitration Center of Iran Chamber (“ACIC”), a private company, the claimant, resorted to arbitration to force the defendant, which was a State-owned company, to compensate the loss of claimant due to non-conformity of the goods with the contract. The defendant argued that since it is a state-owned company and its properties are subject of Art 139 of Constitutional Law, the permission of the Board of Ministers should have been obtained, otherwise arbitral tribunal has no jurisdiction. The arbitral tribunal based on below reasoning found that conditions of Art 130 of Constitutional Law are not applicable here.

“Art. 139 of Constitutional Law is not in principle an obstacle to the jurisdiction of the tribunal in a commercial dispute that a state-owned company is a party of the dispute since the properties that are subject of the dispute are considered private properties and are being possessed by the defendant in its contractual and commercial capacity.”

In conclusion, by adopting these interpretations we can limit the scope of Art. 139 Constitutional Law, removing major obstacle to recourse to arbitration in Iran. In fact, the requirements of Article 139 of Constitutional Law, if otherwise treated and interpreted, will be inconsistent with the principle of rapidity in international commercial trade and also in contrary with good faith. Foreign investors expect from the host government to ensure the implementation of the agreement and arbitration clause rather than disregarding the investor’s rights and hampering the arbitration process. Moreover, laws and regulations must not be interpreted in a way that allows state-owned entities to be unilaterally relieved from their contractual commitments. Therefore, differentiation between the properties possessed by the government in its sovereign capacity and in its contractual capacity is a key point to resolve this problem. Having discussed the applicability of Art. 139 of Iran Constitutional Law, in the next article we will provide an overview regarding various dispute settlement mechanisms as per determined in BIT(s) concluded between Iran and other countries. Moreover, we will see how requirements of Art. 139 may affect arbitration as a major dispute settlement method under such BITs.

Call for Applications – Assistant Editor (EILA Review)

The European Investment Law and Arbitration Review is seeking to appoint an

Assistant Editor

The main task of the Assistant Editor is to take control of proof-reading, language editing and consistency editing of the accepted submissions and working with the Editorial Board and the publisher for each issue.

The main workload is concentrated in the spring and summer of each year.

  • The ideal candidate should be native or near native English, with a law degree and further specialization in international investment law and arbitration.
  • The candidate must have previous experience in a similar position.
  • This position requires great attention to detail and quick turn out.

The person will be named on the Review and a modest sum of money (€750 per issue) will also be paid. More information about the Review can be found at the website:
http://www.europeaninvestmentlawarbitrationreview.eu/

If you are interested in assuming this role, please send your short CV and 1 page application letter explaining how you would see your role to the following email address:
eilarev2016@gmail.com

We wish to appoint a candidate as of 1st May 2017.

The deadline for application is 24 April 2017.