Report on the 5th EFILA Annual Conference held on 30th January 2020 in London

by Dr. David Pusztai (Quinn Emanuel Urquhart & Sullivan, LLP

The European Federation for Investment Law and Arbitration (EFILA) held its 5th Annual Conference on 30 January 2020 in London, with a focus on Investment Arbitration in the EU: Alternatives to Intra-EU BITs”. As the Secretary-General of the International Centre for Settlement of Investment Disputes, Meg Kinnear, noted in her keynote speech, there is no small irony in alternative dispute settlement” today being understood as a reference to alternatives of investment arbitration. Arbitration has traditionally been perceived as the epitome of alternative dispute settlement mechanisms, yet today the attention shifts to its alternatives: back to domestic court proceedings, to conciliation, mediation and fact findings.

The Secretary-General stressed that ICSID responds to the call for alternatives. Kinnear discussed proposed changes to the ICSID Conciliation Rules, as well as the proposed mediation and fact-finding rules in great detail. The upshot of consultation with stakeholders at the ICSID level was that parties expect less formalism, more flexibility in procedures, and more available procedural options. These considerations have been key pointers in articulating the new rules for ADR at ICSID. The Secretary-General also highlighted the inevitable challenges of bringing a project of alternative investment dispute resolution to success. Among these challenges, Kinnear pointed to the unique combination of skills expected from an investment dispute mediator or conciliator. Both a deep understanding of investment disputes and their legal framework, and experience and suitability as a mediator will be required from individuals mediating investment disputes. As several contributors also underscored during the conference, States need to form an official position as to whether they are willing to engage in ADR processes. In most cases, this would require implementing changes to domestic regulatory and institutional frameworks which have been designed for invesment arbitrations, and cannot accomodate other forms of investment dispute resolution.

The keynote speech was followed by a discussion between Monty Taylor of Arnold & Porter, Professor Stephan Schill of the University of Amsterdam, Dr Paschalis Paschalidis of Shearman & Sterling and Arne Fuchs of McDermott Will & Emery, moderated by Lord Goldsmith QC. Whilst endorsing the development of alternatives to arbitration, the participants voiced several concerns that put into doubt the feasibility of ADR in the investment dispute resolution context. It was raised whether governmental officials tasked with decision-making in the course of investment dispute mediations can realistically be expected to undertake full responsibility for the outcome of the dispute settlement process. Incentivising both government officials and ultimate political decision-makers to approach ADR processes in an efficient manner was described as a potential hurdle for ADR to succeed as an investment dispute settlement tool. The panelists also discussed whether alternative dispute settlement procedures risk contracting out” of public law structures and accountability mechanisms, and stressed the need for adequate safeguards against corruption tainting the process. The extent to which ADR can substitute (as opposed to complement) investor-State dispute settlement for EU investors was considered doubtful as long as third State investors retain the leverage of potential investment treaty claims against European Governments.

Three further panels addressed alternatives to investment arbitration from various angles throughout the day. The panel discussions were opened by Professor Loukas Mistelis, the Chair of the Executive Board of EFILA, who commented on contours of the emerging new era of investment protection: investment law being potentially submerged in international trade law, and the potential return of contract-based investment disputes. The first panel, chaired by Judge Christopher Vajda of the Court of Justice of the EU, considered investment protection under EU law. Judge Vajda outlined the pertinent case law of the Court of Justice, and explained the Court’s interpration of the scope of the Charter of Fundamental Rights, which is expected to be a potential legal basis for investment claims pursued before courts of Member States in the future. The panelists, Alejandro Garcia of Clyde & Co, Dr. Patricia Nacimiento of Herbert Smith Freehills Germany LLP and Dr. Alexandra Diehl of White & Case addressed the status quo of investment protection post-Achmea. The discussion covered the competing theories on the nature of investor rights and whether the termination of sunset clauses can pre-empt recourse to investment tribunals; the leaked draft of the Plurilateral Agreement” being negotiated by EU Member States with a view to terminating intra-EU investment treaties; and changes required in the system of judicial protection under EU law from the perspective of investment protection.

The second panel of the day, moderated by Professor Nassib G. Ziadé (CEO of the Bahrain Chamber for Dispute Resolution (BCDR- AAA)), focussed on Alternative tools for effective investment/investor protection”. The panel, comprising Mark Appel, Mélida N. Hodgson of Jenner & Block, Eloïse M. Obadia of the International Finance Corporation and Professor Gerard Meijer of Linklaters, discussed in particular the ongoing reform process at ICSID. The central point of the debate, with several contributions from the audience, was how to reconcile the public demand for greater transparency and accountibility in investment dispute settlement with the indispensable confidentiality that mediation or conciliation processes require. A halfway house” approach was considered by the panelists, whereby the fact of the dispute settlement would be public, third party interests would be chanelled into the process, all the while preserving the confidentiality of the proceedings strictly speaking. Echoing the concerns discussed in Meg Kinnear’s keynote speech, the panelists shared the view that awareness and readiness of governments to accomodate ADR at a regulatory level is paramount for ADR to succeed.

The third and final panel discussion of the conference was dedicated to the future of the Energy Charter Treaty and energy investment disputes more broadly. Dr. José Ángel Rueda García of Cuatrecasas presided the panel, with the participation of Robin Rylander of Mannheimer Swartling, Dr. Wojciech Sadowski of KL Gates, Luciana Ricart of Curtis, Mallet-Prevost, Colt & Mosle and Quentin Declève of Van Bael & Bellis. The conversation spanned the overview of pending challenges to ECT awards (specifically SCC awards under challenge before Swedish courts), the ongoing reform of the Energy Charter Treaty (ECT), whether the current system of energy dispute settlement is broken and whether the ECT permits the termination of intra-EU ECT protections. Contributions from the audience triggered further discussion of whether the future regulation of the energy sector, in particular of fossil fuels or nuclear energy, raises public policy concerns analogous to industries where consensus recognises that it is appropriate to afford policy makers and regulators more discretion in interfering with proprietary rights (such as gambling or the tobacco industry).

The conference concluded with Professor Nikos Lavranos, Secretary General of EFILA, and Professor Loukas Mistelis, Chair of the Executive Board of EFILA, thanking the participants for their contributions, announcing the winner of the 2019 EFILA Young Practitioners and Scholars Essay Competition, and inviting submissions for the 2020 round.

Stakeholder meeting on a possible future Multilateral Investment Court: Establishment of a Multilateral Investment Court (Brussels, 9 October 2019)

José Rafael Mata Dona[1]

 A week before the autumn session in Vienna of the UNCITRAL Working Group III, the EC held a Stakeholder meeting in Brussels on the subject of the establishment of a Multilateral Investment Court. The initiative took place as part of the EC Commitment to Transparency.

During the introductory speech, Collin Brown (Dispute Settlement and Legal Aspects of Trade Policy, Directorate General for Trade, European Commission) traced the history of the proposal for a multilateral court for the settlement of investment disputes back to September 2017. This was followed by Collin’s general comments on UNCITRAL discussions, mandate and the content covered through its three distinct phases of progress, the last of which ‘Development of relevant solutions for the reform of ISDS’ started on the 4th of April 2019 and is still ongoing in two parallel tracks: one focusing on structural reforms and another involving other types of solutions. Collin highlighted the celebration of inter-sessional meetings, as in September 2019 in Conakry, Guinea.

The EC’s expectation for the 14–18 October 2019 meeting is that the WG will agree to discuss substantive issues and proceed as per the UNCITRAL Secretariat paper on reform options. Also, the EC expects the WG to develop relations to other international bodies e.g. OECD and UNCTAD. Among the submissions to UNCITRAL WG III on possible reform of ISDS, Collin said particular attention should be paid to China’s proposal of a permanent appellate mechanism. He generally commented on the UNCITRAL Secretariat thematic papers and the multidisciplinary approach of the Academic Forum papers. Along those lines, he specifically mentioned the proposal for the creation of ‘An Advisory Centre on International Investment Law’ (See here and here). The slides of the presentation and the video of the meeting are available here.

All the foregoing led to the exchange of views described below.

 

In the first round of questions, participants asked about (i) the role of the USA in the WG (ii) the jurisdiction of the Multilateral Court (iii) the maintenance of the term ‘arbitrator’ in the EC proposal for a multilateral court (iv) the status of the EC in the WG and (v) any particular contribution the EU is or is not willing to support.

In reply to those questions, Collin clarified the US has not submitted a paper but takes a fairly active role in the WG with more focus on reforms already put in place.

He said the EU view on the jurisdiction of the MIC is that it should be kept fairly open, though that debate is yet to happen. Further, he mentioned the EC does not refer any longer either to ‘arbitrators’ nor ‘judges’ in its proposal. It now refers to ‘adjudicators’ as a more neutral term.

Collin signalled accreditation to the WG is directly handled by the UNCITRAL Secretary. The EC submitted a paper on behalf of both, the EU and EU Member States.

For the EC, the WG is not the appropriate forum to discuss about withdrawal of consent. On the contrary, the EC sees coming as a genuine part of the discussions the use of domestic remedies, which in its opinion should be encouraged but not necessarily exhausted.

In the second round of questions, participants asked about (i) the use of an opt-in clause (ii) the level of consent expressed by African groups during the regional meeting in Conakry (iii) expectations in Vienna regarding the two parallel tracks of work streams (iv) the support behind the MIC and how long it could take, (v) how many EU countries have ratified the Mauritius Convention and applied it (vi) the applicability of the New York Convention to the enforceability of the MIC decisions (vii) EU Law conformity in regard with Opinion 1/17 of the CJEU, and (viii) the ability of third parties to have more extended rights than an amicus curiæ.

Collin explained the idea of the opt-in clause is to create an umbrella treaty and remarked there is a discussion as to whether it would be automatically applicable or not. As previous examples of implementation, he quoted the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (the ‘Mauritius Convention’) and the Convention on Mutual Administrative Assistance in Tax Matters developed jointly by the OECD and the Council of Europe.

Collin argued he could not speak on behalf of any African groups. Allegedly, there was a concern on costs, duration of proceedings, how to address more the use of Conciliation, Mediation and other ADRs, cultural diversity in arbitration and the difficulties developing countries face in managing to defend themselves.

As to the two parallel tracks of work streams, the EC will actively participate in both. However, its priority is to work more on a permanent structure. Collin said the idea of the multilateral court has found not only support but also interest. Countries realize there is an opportunity to engage in significant reform and are keen to do that. Obviously, it is quite difficult to predict how long this will take despite the celebration of intersectional sessions to accelerate the process to move forward.

Collin said the number of countries that have ratified the Mauritius Convention is growing steadily, but international law does not move very quickly. So, it takes time. During the last 4 years, the EU has been discussing a Council decision on the adoption of the Convention, but a very small number of EU States does not want to get there. Once that decision is made, it will open the door for EU Member States to ratify the Mauritius Convention, which already many EU Member States have signed.

On enforceability, Collin distinguished two elements. On the one hand, there should not be the ability for domestic courts to review a decision which has been subject to appeal. These rules should be modelled or similar to ICSID enforceability rules. On the other hand, the EC foresees an argument on the enforceability of the decisions of the MIC in third countries. According to the EC, the solution to the latter is to apply the New York Convention. And in this regard, the Iran-United States Claims Tribunal is quoted as an example of the applicability of the New York Convention to the enforceability of the decisions of a permanent body. This does not properly clear the fact that equality of the parties in the appointment of arbitrators constitutes a principle of international public policy. Article V(2)(b) of the New York Convention is understood as providing grounds for nonrecognition of awards for a lack of due process or violation of public policy.

As to EU Law conformity in regard with Opinion 1/17 of the CJEU, the EC envisions to ensure it in part in the MIC itself but much more likely also in the underlying treaties with non-binding decisions on EU Law and the same for the type of remedies.

For the EC, the question on the ability of third parties to have more extended rights than an amicus curiæ is not on the horizon of the discussions that will take place in Vienna from 14 to 18 October 2019. It is a subject for future discussion in a later stage of the reform.

Finally, during the last round of questions Collin observed that it is not immediately clear the Multilateral Court should be a specific structure or have a particular relation to the International Court of Justice.


[1] Member of the Brussels, Barcelona and Caracas Bars.

DAA Investment Arbitration Committee Meeting 2019

The new 2018 Dutch Model BIT text: An evolution or revolution?

An event organised by the DAA Investment Arbitration Committee  
Date: Tuesday 21 May 2019
Location: DLA Piper, Amstelveenseweg 638, Amsterdam

In October 2018, the Dutch Government approved a new Dutch Model BIT text, which replaces the 2004 text. The 2018 text has been developed on the basis of a public online consultation round and intensive discussions with various stakeholders. The backdrop of the 2018 text forms the heated debate, which has been surrounding the perceived shortcomings of the current investor-State dispute settlement (ISDS) system and the general scepticism against the benefits of trade and investment agreements. The reform agenda of the EU, which has been implemented in its new trade and investment agreements such as CETA and the creation of the Investment Court System (ICS) are also partly reflected in the 2018 text. The aim of this event is to take stock of the most important changes, which the 2018 text introduces and to discuss their pros and cons – also compared to the 2004 text and in light of awards involving Dutch BITs that have been issued in the past.

The event will be preceded by the Annual General Assembly of Members of the Dutch Arbitration Association.

Program

11.30 – 12.30 General Assembly of Members of the DAA
12.30 – 14.00 Light lunch
14.00 – 14.20 Overview of the new 2018 Dutch Model BIT text by Ralf van de Beek, Dutch Ministry of Foreign Affairs
14.20 – 15.30 Panel discussion with
Hans van Houtte (Professor, KU Leuven)
Carmen Nunez Lagos (Hogan Lovells, Partner)
Niuscha Bassiri (Hanotiau & Van den Berg, Partner)
15.30 – 16.00 Coffee break
16.00 – 17.15 Continuation of Panel discussion
17.15 – 18.30 Closure & drinks

 

Registration

Places are limited. Please register by sending an email to: events@dutcharbitrationassociation.nl.
You can register via email until 17 May 2019

New from Oxford University Press: China’s International Investment Strategy Bilateral, Regional, and Global Law and Policy

China’s International Investment Strategy
Bilateral, Regional, and Global Law and Policy
International Economic Law Series

Edited by Julien Chaisse

9780198827450
This collection, compiled by award-winning scholar Professor Julien Chaisse, explores the three distinct tracks of China’s investment policy and strategy: bilateral agreements including those with the US and the EU; regional agreements including the Free Trade Area of the Asia Pacific; and global initiatives, spear-headed by China’s presidency of the G20 and its ‘Belt and Road initiative’. The book’s overarching topic is whether these three tracks compete with each other, or whether they complement one another – a question of profound importance for the country’s political and economic future and world investment governance.

Features

• Combines legal, economic and international relations perspectives, to provide a comprehensive analysis of the subject
• Brings together a group of experts in the field, exploring the most recent issues in international trade law
• A variety of illustrations support and elucidate the contributors’ arguments.

Table of Contents
Forward, Zhao Hong
Introduction: China’s International Investment Law and Policy Regime- Identifying the Three Tracks, Julien Chaisse
1: China’s Inward Investment: Approach And Impact, Michael J. Enright
2: China’s Outward Investment: Chinese Enterprise Globalization’s Characteristics, Trends, and Challenges, Hui Yao Wang and Lu Miao
3: Impact of Tax Factors on Chinese FDIs, Na Li
4: SOE Investments and The National Security Protection: Implications For China, Lu Wang
5: Nationwide Regulatory Reform Starting From China’s Free Trade Zones: The Case Of Negative List Of Non-Conforming Measures, Jie (Jeanne) Huang
6: Addressing Sustainable Development Concerns through IIAs: A Preliminary Assessment of Chinese IIAs, Manjiao Chi
7: Lessons Learned from The Canada-China FIPA For The US-China BIT And Beyond: Chinese Whispers Or Chinese Checkers?, Kyle Dylan Dickson-Smith
8: Innovation as a Catalyst in the China-Israel Investment Relationship:The China-Israel BIT (2009) and the Prospective FTA, Hadas Peled and Marcia Don Harpaz
9: Drivers and Issues of China-EU Negotiations for A Comprehensive Agreement on Investment, Flavia Marisi and Qian Wang
10: Issues on SOEs in BITs: The (Complex) Case of the Sino-US BIT negotiations
11: Towards A Fourth Generation of Chinese Treaty Practice: Substantive Changes, Balancing Mechanisms, And Selective Adaption, Matthew Levine
12: Substantive Provisions of East Asian Trilateral Investment Agreement and Their Implications, Won-Mog Choi
13: The RCEP Investment Rules and China: Learning From the Malleability of Chinese FTAs, Heng Wang
14: Towards an Asia-Pacific Regional Investment Regime: The Potential Influence of Australia and New Zealand as a Collective Middle Power, Amokura Kawharu and Luke Nottage
15: A New Era in Cross-Strait Relations? A Post-Sovereign Enquiry in Taiwan’s Investment Treaty System, Horia Ciurtin
16: China Moves The G20 Toward An International Investment Framework And Investment Facilitation, Karl P. Sauvant
17: G20 Guiding Principles for Global Investment Policy-Making: A Stepping Stone for Multilateral Rules on Investment, Anna Joubin-Bret and Cristian Rodriguez Chiffelle
18: Beware of Chinese Bearing Gifts: Why China’s Direct Investment Poses Political Challenges in Europe and the United States, Sophie Meunier
19: The Political Economy of Chinese Outward Foreign Direct Investment in “One-Belt, One-Road (OBOR)” Countries, Ka Zeng
20: China’s Role And Interest In Central Asia: China-Pakistan Economic Corridor, Manzoor Ahmad
21: The International Fraud & Corruption Sanctioning System: The Case of Chinese SOEs, Susan Finder
22: He Who Makes the Rules Owns the Gold: The Potential Ramifications of The New International Law Architects, Joel Slawotsky
23: Investment Treaty Arbitration in Asia: The China Factor, Matthew Hodgson and Adam Bryan
24: Investment Disputes Under China’s Bits: Jurisdiction with Chinese Characteristics?, Jane Willems
25: Protecting Chinese Investment Under the Investor-State Dispute Settlement Regime: A Review In Light Of Ping An V Belgium, Claire Wilson
26: Use Of Investor-State Against China’s Enforcement of The Anti-Monopoly Law: Belling The Panda?, Sungjin Kang
27: Implementing Investor-State Mediation in China’s Next Generation investment Treaties, Shu Shang

For more details, please visit the OUP dedicated page.

Call for Papers: 2019 Taipei International Conference

2019 Taipei International Conference on Arbitration and Mediation

The Chinese Arbitration Association, Taipei (CAA) and the Asian Center for WTO & International Health Law and Policy, College of Law, National Taiwan University (ACWH) are to jointly host the “2019 Taipei International Conference on Arbitration and Mediation” on August 15 & 16, 2019 in Taipei, Taiwan. The conference theme is “A New Wave of Reflections and Reforms in International Arbitration and Mediation”. Arbitration experts and scholars are welcome to provide unpublished academic papers and case studies on any one of the following topics:

1. Reform initiatives in international commercial arbitration (such as the Prague Rules comparing to the IBA Rules in the area of evidence taking).
2. Possible reforms of the ICSID Rules.
3. The blurring distinction between international investment arbitration and international commercial arbitration (such as the trend of commercial arbitration centers handling investor-State disputes).
4. The new Convention on the Enforcement of International Settlement Agreements and its corresponding UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018.

I. Important Dates (based on Taipei time)

1. Abstract submission deadline: April 10, 2019
2. Abstract acceptance notification: April 20, 2019
3. Full paper submission deadline: May 20, 2019
4. Full paper acceptance notification: June 10, 2019
5. Conference dates: August 15 & 16, 2019

II. Review process

1. The review process will be divided into two stages: the initial stage of review and the final stage of review. “Articles passing the review process” refer to the submitted abstracts/articles that have passed both the initial and final stage of review.
2. The initial stage of review: Applicants will need to submit their abstracts of the papers before the abstract submission deadline. He/she will be informed of the result of initial review on April 20, 2019. The applicants whose abstracts pass the initial stage of review will need to submit their full papers before the full paper submission deadline.
3. The final stage of review: Applicants whose full papers pass the final review process will be invited to present at the conference. They will also be encouraged to submit their papers to the Contemporary Asia Arbitration Journal (CAAJ) for a peer-review process seeking possible publication.
4. Details pertaining to a peer-review process and submission policy of CAAJ can be found at the ACWH website at http://www.ntu.law.acwh.tw/publication.php.

III. ​Award

The best paper selected by the Review Committee will be granted an award of USD 500 for his/her airfare to travel to Taipei for the Conference and a certificate jointly issued by the CAA and the ACWH. The author has to present his/her paper at the Conference so as to be qualified for this USD 500 reimbursement. The host will provide local accommodations during the conference. In the case of co-authors, please note that they will share the USD 500 reimbursement and only one author will be provided with the local accommodation.

IV. Conference/Paper Language

All the papers need to be written and presented in English.

V. Guidelines for Abstract / Paper Submission

1. Abstract: The total number of words in the content of an article for submission should be within 500 words.
2. Full paper: The total number of words in the content of an article for submission should be between 5,000 to 10,000 words. Authors are strongly encouraged to use blue book citation for their submissions.

VI. Abstract Submission Format

Prospective author is invited to submit your abstract submission and your curriculum vitae in the format of a Word file or PDF file to wtocenter@ntu.edu.tw. The abstract submission must include the following information:

1. Title
2. Author: Name, contact information, e-mail address
3. Abstracts: A maximum of 500 words
4. Keywords: A maximum of ten keywords

VII. Contact information

Sunny Guan Ye Li (Ms), Asian Center for WTO & International Health Law and Policy College of Law, National Taiwan University College of Law
(Official website: http://www.ntu.law.acwh.tw/)
Tel: +886-2-33663366 ext. 55234
Fax: +886-2-33668965
Email: wtocenter@ntu.edu.tw

Pei-Jung Li (Ms), Chinese Arbitration Association, Taipei
(Official Website: http://www.arbitration.org.tw/english/index.php)
Tel: +886-2-27078672 ext. 51
Fax: +886-2-27078642
Email: peijungli@adr.org.tw

Save the Date: 15 February 2019 – IV Annual Conference of the Belgian Chapter of the CEA – Arbitration and ADR in BIG construction projects of strategic infrastructure

EFILA is proud to announce the IV Annual Conference of the Belgian Chapter of the CEA regarding “Arbitration and ADR in BIG construction projects of strategic infrastructure”.

Brussels, Friday 15th February 2019 – 13:30 to 19:00
Jones Day’s offices – Rue de la Régence 4, 1000 Bruxelles

13:30 Registration of participants


14:00 Welcome remarks
Vanessa Foncke, Jones Day, Brussels
Emilio Paolo Villano, Capítulo Belga del Club Español del Arbitraje, Brussels

14:15 Keynote speech
Nicolas Angelet, Professor at Université Libre de Bruxelles, Brussels

14:45 PANEL 1 – Investment arbitration: where do we stand?
Moderator: Patricia Saiz, Professor at ESADE Law School, Barcelona
Special discussant: Petra Butler, Professor at Victoria University of Wellington, Wellington
§ The Energy Charter Treaty: is the sky cloudy or is it raining already? Antonio Vázquez-Guillén, Allen & Overy, Madrid
§ Intra-EU BITs after Achmea: the EU standpoint – Tim Maxian Rusche, EU Commission, Legal Service, Brussels
§ The Vattenfall case and the concept of legitimate expectations vs freedom to regulate – Ignacio Santabaya, Jones Day, Madrid

16:30 Coffee break


17:00 PANEL 2 – Dispute resolution in big-scale construction projects
Moderator: Alexander Hansebout, Altius, Brussels
§ When the State or a State-owned entity are the procuring entity or the main contractor: issues, concerns, solutions – Monica Feria-Tinta, 20 Essex Street, London
§ Shaping the dispute resolution mechanism within the supply chain: dos and don’ts – Ioana Knoll-Tudor, Jeantet, Paris
§ Before arbitration: DRB, expert adjudication and more – Lindy Patterson QC, 39 Essex Chambers, DRBF Director & President Region 2, London
§ Financing litigation on big construction projects: the TPF insights – Hannah Van Roessel, Omni Bridgeway, Amsterdam
§ Time is of the essence: extra-costs and time extension in big scale projects – Francesco Andreano, Stairwise, Turin
§ The enforcement of arbitral awards against States or State-owned entities – Jacques-Alexandre Genet, Archipel, Paris


19:00 Conclusive remarks
José Antonio Caínzos Fernández, Honorary President of the CEA, Partner at Clifford Chance, Madrid


19:20 Cocktail reception

This event has been granted 4 CLE Credits by the Ordre des Barreaux Francophones et Germanophone de Bruxelles and the Nederlandse Orde van Advocaten bij de Balie te Brussel .

Registrations on a “First come – First Served” basis at: administracion@clubarbitraje.com

Report on the 4th Annual EFILA Lecture delivered by Prof. George A. Bermann (Columbia University New York, School of Law), Brussels 25 October 2018

by Adam Marios Paschalidis (NautaDutilh)

Recalibrating the European Union – International Arbitration Interface

Introduction

The 2018 Annual EFILA Lecture by Prof. George A. Bermann (Columbia University School of Law), continues the successful Annual EFILA Lectures series, which were previously delivered by Sophie Nappert (2015), Johnny Veeder (2016) and Sir Christopher Greenwood (2017).

Before giving the floor to Prof. Bermann, Prof. Dr. Lavranos, Secretary General of EFILA set the scene of the Lecture by referring to the EU’s recent trend of re-considering the inclusion of the investment court system (ICS) in its FTAs. While the ICS has been included in EU-Singapore FTA, EU-Vietnam FTA, EU-Mexico FTA and CETA, this is not the case anymore in EU-Japan FTA, and neither is it on the table for the EU-Australia and New Zealand FTAs, whose negotiation phase started after the CJEU’s Opinion on the EU-Singapore FTA in which the CEJU determined that the competence on investor-state dispute settlement (ISDS) provisions is mixed. He, also, referred briefly to the Vattenfall arbitral tribunal on the Achmea issue and predicted that the ECT-related disputes will be the next theatre to watch in the upcoming years.

By way of introduction, Prof. Bermann considered as a fact that there is little new to be said with regard to the EU law-International Arbitration interface, since a lot of ink has already been spilled on this subject. Furthermore, he clarified that the purpose of his speech is to trigger a constructive discussion through the identification of some EU policy features that, if “revisited”, would promote a better relationship between the two regimes. Moreover, he expressed that the relationship between EU law and International Investment Arbitration is experiencing the most dramatic confrontation amongst other legal order’s interactions. In that regard, he further added that, despite the considerable level of fragmentation, different legal orders seldom collide on such a considerable level.

The Lecture was divided primarily in three parts. Firstly, he referred to the initial stages of European law and its rather scattered interaction with international (private) law. He then proceeded with the main part of his Lecture. In that respect, by eloquently addressing the different phases Community law has undergone, he identified three particular features of EU policy, which have affected the interaction between the European and Investment Arbitration legal framework. At the end of his Lecture, he shared his opinion concerning the future image of the ISDS regime and how EU law can be “refurbished” in parallel to the already accelerated re-examination of the ISDS regime.

Initial stages of EU law and its interaction with international (private) law

Prof. Bermann noted that at first EU law and international private law, especially international arbitration, were experiencing a status of “peaceful co-existence”, as early European law was exclusively focused on regulating the Union’s internal matters. As such, both European Treatises, the European Common Commercial Policy, the European Common Agricultural Policy, the European Common Fisheries Policy and so forth were adopted primarily for internal consumption. The result of this “introversion” was that legal instruments, which were also addressing some “external” aspects of the Union’s law, for instance private law affairs, were adopted outside the EU structures and in the form of conventions, such as the Brussels and Rome Conventions. At this point, Prof. Bermann made specific reference to the absolute exclusion of international arbitration from the content of the above mentioned conventions.

However, since the signing of the Amsterdam Treaty a dramatic shift has become evident. Amongst many other reforms, the regulation of private international law became part of the European Community column. As such, the European Union realised a wider role on that field, driven perhaps by its will to achieve a higher level of federalisation. Therefore, European legal instruments began to deal with private international law affairs as the European Commission was gaining more and more competence to address them. Unsurprisingly enough, the Court of Justice of the EU (CJEU) could not remain silent in light of this wave of “extroversion” and started assuming exclusive jurisdiction in a variety of cases. Both of the abovementioned escalations placed European law, as Prof. Bermann illustratively put it, in orbit of collision with international private law, especially international investment law. At this point, it should be mentioned that Prof. Bermann referred to the rise of ISDS arbitration and leading to a quantum shift as an additional crucial factor for the tension amongst the two regimes. Once again, however, he stressed that the purpose of his Lecture was to identify the changes that took place on the EU’s side of the equation.

EU law changes and their impact in investment arbitration

Prof. Bermann underlined three EU law features that have evolved or have been “invented”, thus influencing its correlation with International Investment Arbitration. However, before presenting them he pointed out that the impact of the first two is relatively limited in comparison to the third one.

First of all, European legal instruments initiated by the European Commission assumed wider roles and attempted to regulate fields of law, that fell under the Member States competence at the first stages of the Union. New legal instruments concerning private and commercial relationships were adopted, thus placing EU law, which would arise previously primarily as a defence in arbitral proceedings, in orbit of collision with international commercial arbitration.

As a second EU law feature that contributed to the prospective/already existing confrontation of the EU legal order with investment arbitration, Prof. Bermann specifically referred to the notion of the private enforcement of EU competition law. Stemming primarily from the CJEU judgment in the EcoSwiss case, this special element of EU law could provide a domestic court with the power to place an arbitral award under a special scrutiny regime, and even reject its enforcement on European public policy grounds. In that respect, two facts are of particular interest. First, he referred to the undefined level of review (deferential or non-deferential) that a domestic court can exercise. Second, he was concerned with the possibility of this ground being investigated by a domestic court on its own motion, irrespective of a party’s previously raised objection. Moreover, Prof. Bermann took his thoughts one step further and directed the audience’s attention to the fact that the precise rationale of the EcoSwiss decision could be utilized by the CJEU in different legal contexts and relationships as well.

Before resuming with the identification of the third EU policy feature, Prof. Bermann concluded that both aforementioned features provided the appropriate fuel for a new EU norm to arise, namely, that of European public policy. He even expressed his concern with regard to the implications European public policy will have in the substantive level of the EU law-International Investment Arbitration interface.

With the aforementioned last consideration, Prof. Bermann proceeded to the third European law element, that according to him affects the interaction between EU law and International Investment Arbitration the most. Prof. Bermann noticed that the concept of “autonomy of EU law” constitutes a rather recent trend in CJEU’s decisions. As found in some of the Court’s Opinions, including the Opinion 2/13 on the EU’s accession to the ECHR and in the Achmea case as well, it seems that the CJEU reserves its right to interpret EU law. In fact, not only does it reserve it, but it also assumes a monopoly in applying it. According to Prof. Bermann, the origin of the “EU law’s autonomy” concept can be traced back to the notion of the EU law’s primacy over the domestic law of the Member-States, as the CJEU held already found in Van Gend en Loos and Costa v. ENEL.

However, Prof. Bermann considered that there is a significant gap between these two EU law concepts (autonomy of EU law and primacy of EU law). On the one hand, the legal norm of “primacy” is expected to operate in intra-EU conflicts of law. On the other hand, the “autonomy of EU law” has been invented in order to interact with the international legal order. As it was articulated in its series of Opinions, the CJEU stands in opposition to any EU’s accession in international treaties that establish a Court or Tribunal whose decisions have an “adverse effect on the autonomy of the EU’s legal order”. In that regard, Prof. Bermann was astonished to note there is no other legal order that purports to disallow foreign courts to interpret its law.

In addition, Prof. Bermann invited the audience to “see” the bigger picture. As such, he remarked that the concept of EU law’s autonomy is expected to create turbulence and confusion concerning the EU’s and its Member States’ international legal standing. Obviously, such a monopoly of interpretation can be abused by the CJEU to form a potential rejection of a claim against the EU or one of its Member States. Even worse, the CJEU could force a domestic court not to enforce a decision or award that stands in contradiction with any part of the EU’s superior legal framework. However, Prof. Bermann did also refer to attempts to moderate/limit the concept of autonomy of EU law with respect to CETA and the ICS system contained therein, which, however, awaits approval by the CJEU in Opinion 1/17.

Furthermore, Prof. Bermann accepted that there is a fundamental difference between the CJEU’s Opinions and its Decisions. The Court’s Opinions, such as Opinion 2/13, were asked in order to predict incompatibilities between two separate legal regimes before signature. On the other hand, the Court’s Decisions like Achmea touched upon a Treaty’s validity after having been signed. As such, the Achmea decision “condemned” a Treaty and “dishonoured” an award, creating a considerable level of precedence. Additionally, Prof. Bermann considered that, although the Court in Achmea reassured the validity of investment treaties like the ECT or the CETA, it made clear that it reserves the exclusive right to interpret EU law.

Last but not least, Prof. Bermann could not help but notice the possible startling outcome of the combination of the CJEU’s monopoly of interpretation with the notion of EU public policy. In that regard, he referred to the Micula case, where the CJEU considered the domestic court’s level of scrutiny as insufficient. As such, the CJEU gave a substantive law dimension to the level of control, which a domestic court should exert when confronted with the recognition and enforcement of an arbitral award. Prof. Bermann took his consideration a step further and “painted” a realistic picture of the CJEU’s demands from a domestic court to reject the enforcement of a decision against the EU itself on public policy grounds.

Future image of Investor-State Dispute Settlement (ISDS)

Taking a third person’s sight in respect of European political and legal dynamics, Prof. Bermann specifically mentioned the need for the ISDS system to be re-examined in its entirety. Being a member of the Gabrielle Kaufmann Kohler academic forum, which has been created in the context of the UNCITRAL Working Group on ISDS reforms, Prof. Bermann called for a reconsideration of the basic features of investment arbitration, as this will prove useful in its interaction with EU law as well. At the same time he also referred to the possible steps, which the EU institutions and EU law could take in order to optimize its interaction with international investment arbitration. As such, a clearer delineation and clarification of the aforementioned EU law concepts, such as “European public policy”, “EU law autonomy” and the extent of an arbitral award’s substantial review by domestic courts could be helpful. Last but not least, Prof. Bermann made specific reference to the potential use of the CJEU’s “proportionality” principle in the “re-calibration” of the EU law-Investment Arbitration law relationship. He also expressed his discomfort of the absence of a constructive dialogue between EU institutions and International Arbitration institutions.

 

Q&A session moderated by Mr Kamil Zawicki (KKG)

The following four points of discussion formed the core of the Q&A session.

First, a comment was raised with regard to the relationship between CJEU’s Opinions and post treaty decisions/judgments. It was stated that there is a considerable difference between the two. The first has to do with a matter that may raise concerns in the future and are non-binding, whereas the Court’s decisions/judgments deal with a specific case and provide a solution based on the facts of the case. On this point, Prof. Bermann argued that CJEU’s Opinions are quite abstract and cannot anticipate which points of concern will arise at a later stage. They represent a special kind of precedent and are rarely not followed by the EU’s organs, despite the fact of not being binding. As for the Court’s decisions/judgments, he stated that they refer quite often to generic norms, although they deal with the particular facts of the case at hand.

Second, a question was raised concerning what  possible considerations an arbitrator is forced to make when sitting in ICSID arbitration proceedings, which take place in an EU Member State. Prof. Bermann replied that firstly an arbitrator should take  into consideration  his/her mandate to deliver an enforceable award. Secondly, he noted, in response to another point raised, that the interpretation of the Achmea case should be the same under intra-EU BITs, the ECT and the ICSID contexts. However, Prof. Bermann made a comment of significant value with regard to this question. He stated that even an award delivered in a seat of arbitration located outside the EU, such an award could still be annulled or not enforced for reasons of comity.

Third, a significant difference between the EcoSwiss case and the Achmea case was underlined. It was mentioned that in EcoSwiss the CJEU forced the Dutch courts to annul the arbitral award at hand. On the other hand, in Achmea the CJEU found that the arbitration clause was incompatible with the EU law, thus leaving more space for the domestic court’s deliberation. Prof. Bermann acknowledged the point raised, but he then turned the discussion on the EU law dynamics. Therefore, a domestic court cannot do much when confronted with the notion of EU law’s supremacy over domestic law. At this point, Prof. Lavranos added that indeed there is no room left to a domestic court to decide otherwise. Prof. Lavranos, also, referred to the need for widening the preliminary ruling system. In that respect, he expressed that it is of utmost importance that arbitral tribunals are provided with the right to request a preliminary ruling from the CJEU in case EU law is at issue. According to him, this crucial step would simplify the current situation in terms of consistency and predictability.

Fourth, a rather crucial remark was raised in respect of a very interesting feature of the Achmea case. In that regard, it was mentioned the Achmea case dealt primarily with the preliminary question of the presence or absence of the State’s relevant consent. The CJEU based its interpretation on the fact that the Member States compromised a part of their sovereignty by signing the Lisbon Treaty. Therefore, the CJEU can invoke the “supreme” instruments of EU law in order to determine the element of consent. At this point of the session, a debate took place with regard to the interpretation of Art. 54 ICSID “as it if were a final judgment of the courts of a constituent state”. It was mentioned by the audience that Art. 54 ICSID does not prevent a State from not enforcing an award on one of the grounds for annulment under ICSID or the ones for refusal of enforcement under the New York Convention. Prof. Bermann responded to the second point by mentioning that this depends on a particular State’s reading of the provision and exemplified his position by referring to the US framework concerning ICSID awards under which this kind of decisions are immune.

As far as the interpretation of a consent’s validity and its co-relation with EU law is concerned, Prof. Bermann made the following remarks. He firstly admitted that the supremacy of the EU law is a norm that should be taken into consideration when discussing the interaction of the EU’s and its Member States’ legal frameworks. However, when the concept of “supremacy” transforms into the one of “autonomy” and is used against the international legal order, problems as the one in the Micula case will arise. He further supported his opinion by inviting the audience to adopt a broader view beyond intra-EU BITs and imagine how an individual would investigate the existence of a consent from an international law perspective, by making reference to the Vienna Convention and its relevant provisions. As a last point, Prof. Bermann subscribed that a State is still considered a subject of international law, despite being a member of the EU.

Save the Date: 4th EFILA ANNUAL LECTURE by Prof. George A. Bermann

On Thursday, 25 October 2018, Prof. George A. Bermann (Columbia University New York) will deliver the 4th EFILA Annual Lecture.

“Recalibrating the European Union—International Arbitration Interface”

PROGRAMME:

16.30 – 17.00 Registration, Coffee, Tea
17.00 -17.15 Welcome address by Prof. Dr. Nikos Lavranos, Secretary General of EFILA
17.15-18.00 Annual Lecture by Prof. George A. Bermann (Columbia University New York)
18.00-18.45 Q&As and discussion moderated by Kamil Zawicki (co-managing partner, KKG)
18:45-20.00 Drinks

Prof. George A. Bermann has a J.D. and a B.A. from Yale University and an LL.M. from Columbia Law School. He holds honorary degrees from the Universities of Fribourg in Switzerland, Versailles-St. Quentin in France and Universidad César Vallejo in Peru. He is an affiliated faculty member of the School of Law of Sciences Po in Paris and the MIDS Masters Program in International Dispute Settlement in Geneva. He is also a visiting professor at the Georgetown Law Center. At the Law School, he founded both the European Legal Studies Center and the Columbia Journal of European Law.

Prof. Bermann is an active international arbitrator in commercial and investment disputes; chief reporter of the ALI’s Restatement of the U.S. Law of International Commercial Arbitration; co-author of the UNCITRAL Guide to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards; chair of the Global Advisory Board of the New York International Arbitration Center (NYIAC); co-editor-inchief of the American Review of International Arbitration; and founding member of the governing body of the ICC Court of Arbitration and a member of its standing committee. He has been a visiting scholar at the European Commission Legal Service in Brussels; the French Conseil d’Etat; the Max Planck Institute for Foreign Public Law and International Law in Heidelberg, Germany; and Princeton University’s Center for International Studies

Brussels, 23 February | CEA Third Annual Conference: The present and near future of new technologies in arbitration

The Club Español del Arbitraje (the “CEA”) is a Spanish non-profit organization constituted in 2005 with the purpose to promote arbitration as an alternative method of conflict resolution and the development of arbitration in Spanish and Portuguese or Latin-American component. The CEA counts with more than 1000 members of 40 countries and 28 international chapters in Europe, America and Asia.

The Third Annual Conference will take place on 23rd February 2018, STIBBE, Rue de Loxum 25 Loksumstraat, 1000 Bruxelles. Registration here.

 

Third Annual Conference Co-Chairs:

Alexander Hansebout – Partner, Altius, Brussels
Audrey Goessens – Case Manager, CEPANI, Brussels
Damien Geradin – Professor at Tilburg University (the Netherlands) and Visiting Professor, University College London; Partner, Euclid Law, Brussels
Dodo Chochitaichvili – Litigation and Arbitration Lawyer, Brussels
Edurne Navarro Varona – Partner, Uría Menéndez, Brussels
Emilio Paolo Villano – i3-law, Turin – Madrid – Brussels
Emma Van Campenhoudt – Secretary General, CEPANI, Brussels
Gautier Matray – Partner, Matray Matray & Hallet, Brussels
José Rafael Mata Dona – Arbitrator in independent practice and accredited mediator, Brussels
Maxime Berlingin – Of Counsel, Fieldfisher, Brussels, Lecturer at Saint-Louis University – Brussels
Niuscha Bassiri – Partner, Hanotiau & Van den Berg, Brussels
Yulia Selivanova – Independent Trade & Energy Regulatory Affairs Expert, Brussels

Program:

13:30 Registration of participants
14:00 Welcome Speeches
• Gautier Matray, Representative of the Capítulo Belga del CEA, Brussels
• Seguimundo Navarro, Secretary general of the CEA
• Nicolas Résimont / Benoît Kohl, Stibbe, Brussels
• Meloria Meschi, FTI Consulting, Paris
• Mathieu Maes, Secretary general of the ICC Belgium
• Emma Van Campenhoudt, Secretary General of CEPANI, Brussels
14:30 Keynote Speech
• Sophie Nappert, 3VB, Gray’s Inn, London
15:00 First Panel (moderated by Dodo Chochitaichvili and Maxime Berlingin)
• Consent to arbitrate given by digital means: validity and enforceability of the arbitration agreement. Erica Stein, Dechert LLP, Brussels
• Can leaked or hacked information and documents be used as evidence in arbitration? Matthew Buckle, Norton Rose Fulbright, London
• Confidentiality in arbitration at the age of emails and cloud computing. Franz Stirnimann Fuentes, Froriep, Geneva
• Access to cutting edge technology and equality of arms in arbitration. Alexander Fessas, Secretary General of the ICC International Court of Arbitration, Paris

Debate and Q&A
16:30 Coffee Break
17:00 Second Panel (moderated by Niuscha Bassiri and José Rafael Mata Dona)
• New technologies used today and 10 years from now in arbitration. Erik Schäfer, Cohausz & Florack, Düsseldorf
• Protection and acquisition of e-evidence. How to do it and risks of breaching privacy and privilege. Charles Raffin, Hardwicke, London
• How the increasing amount of available information and data can be used in arbitration cases. Meloria Meschi, FTI Consulting, Paris
• Are e-skills and on-line security standards to be considered while appointing an arbitrator? Mohamed S. Abdel Wahab, Zulficar & Partners, Cairo
Debate and Q&A
18:30 Closing Remarks
• Benoît Kohl, Stibbe, Brussels – Professor at the University of Liège
• Carol Evrard, Stibbe, Brussels
Cocktail reception

3rd EFILA Annual Conference 2018

EFILA is pleased to invite you to our 3rd Annual Conference which will take place in London on the 5th of February.

For more details about the event please see the event’s page here. For ticketing details, please see the Eventbrite dedicated page.

 

Parallel States’ Obligations in Investor-State Arbitration

The conference will focus on:

  • Non-disputing third parties and their influence on arbitration
  • Investment regulation and arbitration
  • Human rights, environment and arbitration
  • Proposed Investment Court System

Draft Programme

08.30-09:00 Registration, tea and coffee

09:00-09:15 Welcome Address by Chair of the Executive Board of EFILA

– Sherina Petit (Norton Rose Fulbright)

09:15-10:45

Panel 1: Non-disputing third parties and their influence on arbitration

– Chair: Yasmin Mohammad (Vannin Capital)

– Alejandro López Ortiz (Mayer Brown)

– Kostadin Sirleshtov (CMS)

– Lise Johnson (Columbia Center on Sustainable Investment)

10:45-11:15 Tea/coffee break sponsored by Brill Martinus Nijhoff Publisher

11.15-12.45 Panel 2: Investment regulation and arbitration

Chair: Aron Skogman (Mannheimer Swartling)

– Federico Ortino (Kings College London)

– Christophe Bondy (Cooley)

– Monica Moraleda (Kingdom of Spain)

12.45-14:00 Lunch break

14.00-15.30

Keynote Speech by the Honorable Charles N. Brower, Arbitrator,

20 Essex Street Chambers

“Why The EU Investment Court System Is Destined To Fail Foreign Investors And Host States Alike?”

– Chair: Markus Burianski (White & Case)

Commentators:

– Cherie Blair QC (Omnia Strategy)

– Annette Magnusson (Secretary General of the Arbitration Institute of the SCC)

– Dirk Pulkowski (Permanent Court of Arbitration)

15:30-16.00 Tea/coffee break sponsored by Harbour Litigation Funding

16.00-17.30 Panel 3: Human rights, environment and arbitration

– Chair: Marie Stoyanov (Allen & Overy)

– Monique Sasson (independent arbitrator)

– Stephen Fietta (Fietta)

– Iuliana Iancu (Hanotiau & van den Berg)

17:30-17:45

Closing remarks

– Prof. Nikos Lavranos, Secretary General of EFILA