Call for Contributions – EFILA Blog

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Given the present debate – on both sides of the Atlantic (and beyond) – surrounding the future of ISDS and bilateral investment treaties, the EFILA Blog editorial board believes that a veritable dialogue must take place, allowing all arguments to be heard and all diverging positions to be defended. Discussing the status of an international regime should take place at the very center of the legal community itself and not be left as a mere political bargaining chip.

For these reasons, EFILA offers its Blog as a space for open dialogue, welcoming any contribution that pertains to the field of of international (investment) law and arbitration, EU law and public policy, as well as the dynamics of these multiple legal, political and economic spheres. Moreover, the new impetus of signing regional free trade agreements in Asia-Pacific is of utmost interest for the existing dialogue, showing how other parts of the world advance their investment cooperation despite this troubled global background.

If you are interested in submitting any material to the EFILA Blog, please contact our Managing Editor, Horia Ciurtin, at the following e-mail address: h.ciurtin@efila.org

DAA Dutch Arbitration Day 2017

The fifth anniversary edition of the Dutch Arbitration Day will bring together international arbitration practitioners as well as academics and in-house counsel. This year we will focus on the latest developments in the areas of advocacy and evidence.

Leaders in the field of international arbitration will share their views on and provide practical insights. They will cover topics such as effective oral advocacy, (cross-) examination of witnesses and experts and preparation and presentation of written testimony and expert evidence. The conference will take place in an interactive setting and will provide an excellent environment for participants to tap into the experience of seasoned practitioners from various jurisdictions.

Dutch Arbitration Day 2017
Advocacy and Evidence

Date: Thursday 14 September 2017
Time: 09.30 hours (opening)
Venue: The Hermitage Museum, Amsterdam, The Netherlands

Time Item Speakers
09.00 – 10:00 Ledenvergadering DAA (DAA members only)
09:15 – 10.00 Registration, Coffee
10.00 – 10:15 Welcome Gerard Meijer, President of the Dutch Arbitration Association, Professor of Arbitration & Dispute Resolution at Erasmus University Rotterdam, partner at NautaDutilh
10.15 – 11.00 Keynote
The essence of arbitral advocacy
Hilary Heilbron QC, barrister and arbitrator at Brick Court Chambers
11.00 – 11.30 Coffee break
11.30 – 12.30 Interview / discussion
Capitalizing on arbitration’s potential in respect of advocacy and evidence
Hilary Heilbron QC, barrister and arbitrator at Brick Court Chambers
Michael Schneider, partner at LALIVE
Arthur Hartkamp, Professor European Private Law at Radboud University
Jeroen van Hezewijk (moderator), partner at Freshfields Bruckhaus Deringer
12.30 – 13.30 Lunch on canal boats
Optional: museum tour
13.30 – 13.45 Appointment Natalie Vloemans as new president DAA Gerard Meijer, President of the Dutch Arbitration Association, Professor of Arbitration & Dispute Resolution at Erasmus University Rotterdam, partner at NautaDutilh
13.45 – 14.15 Lecture 
Workings of the mind and psychological pitfalls in witness testimony
Peter van Koppen, Professor of Psychology and Law at VU Amsterdam
14.15 – 15.00 Expert session 1
Expert session on (the value of) witness evidence in international arbitration and ‘tricks of the mind’
Todd Wetmore, partner at Three Crowns
Bregje Korthals Altes-van Dijk, partner at De Brauw Blackstone Westbroek
Ragnar Harbst, partner at Baker McKenzie
Kevin Smith,  Managing Counsel Global Litigation at Shell
Sophie von Dewall (moderator), counsel at Derains & Gharavi International
15.00 – 15.45 Expert session 2
Expert session on quantum evidence, frequent errors in calculating damages and strategic considerations in deploying damages experts
Steven Finizio, partner at WilmerHale
Noel Matthews, senior managing director at FTI Consulting
Raymond van Hulst, Omni Bridgeway
Kiera Gans (moderator), Of Counsel at DLA Piper
15:45 – 16.30 Coffee break
16:30 – 17:30 Panel discussion
The role and future of advocacy in international arbitration
Paul Cohen, barrister at 4-5 Gray’s Inn Square
David Roney, partner at Sidley Austin
Todd Ptak, senior legal counsel at Airbus Group
17:30 – 17:45 Farewell Wouter de Clerck, Chair of the DAD Organising Committee, senior associate at DLA Piper
17:45 – 00:00 Cocktail dinatoire

Registration fee

The registration fee will be: EUR 350 for non-members; EUR 300 for members; EUR 150 euro for in-house counsel and EUR 75for students *. The price is this year including the festive anniversary cocktail dinatoire. Membership may be applied for via the DAA-website.

*) Note for students: Students must show their student card on the day of the conference.

Registration

Please fill in the form to register. You may register for this event until 7 September 2017.

REGISTER

Hotel suggestions

An overview of hotel suggestions can be viewed here.

Contact information

We hope to be able to welcome you all at The Hermitage Amsterdam on Thursday 14 September 2017. For further information concerning the conference, please visit www.dutcharbitrationassociation.nl or contact us via: DAD@dutcharbitrationassociation.nl.

Cancellation policy

Your registration will be treated as a commitment to attend the conference. If you do need to cancel, the DAA must be notified in writing. If written cancellation is received by 31 August 2017, the registration fee will be refunded in full. Any written cancellation received after that date, will not be subject to any full or partial refund.

Press Release: Launch of DAVA | Strategic Analysis – We Are Looking East

 

DAVA | Strategic Analysis is not just another geopolitical think-tank.

Our platform is designed to offer insight in nowadays’ most turbulent international affairs from multiple angles: strategic, geoeconomic, political, cultural and religious. It is an integrated vision upon the crises that rage across Eurasia. And upon tensions that are accumulating in this part of the world. From the Pacific to the Mediterranean and from the East China Sea to the Black Sea, we are watching closely. From China to the Balkans, through Central Asia and the Middle East, we follow the troubled paths of the new Silk Road(s).

Our team of analysts gathers expertise both from the academic scene and from actual practitioners involved ‘on the ground’ in managing the never-ending roadblocks that occur in the region. Located across three continents (Europe, Asia and North America) and deeply focused on strategic research, conducting advisory work or simply doing business, our Experts are best suited to understand the complex phenomena that shape the emerging challenges.

Using a profound understanding of the post-Communist world, of Balkan atomization, of Middle Eastern generalized civil strife or Sino-Asian transformative visions for the world order, the DAVA reports depict the manner in which cultural and structural coordinates influence the evolution of geopolitical dynamics.

We do not write to simply ‘inform’, but to offer alternative perspectives for curious readers, to aid diplomats and advisers, to set in motion new dilemmas for researchers and to help investors or businessmen make a clear image of an area packed not only with security challenges, but also with economic opportunities.

And, thus, we are looking East.

______________________________________________________

You can look East with us on our website: http://davastrat.org

We are more than glad to answer any enquiries you might have at contact@davastrat.org

The first steps towards a Multilateral Investment Court (MIC)

by Prof. Nikos Lavranos, Secretary-General of EFILA

 

On the instigation of the EU, the UNCITRAL Commission adopted a broad mandate for a Working Group to:

  • identify and consider concerns regarding ISDS;
  • consider whether reforms are desirable in light of the identified concerns;
  • if the Working Group were to conclude that reform is desirable, to develop and recommend any relevant solutions;

This mandate was adopted after a heated debate in which the USA and Japan were the strongest opponents to such a mandate, while the EU, Canada, Mauritius, South Africa and several Latin American countries vigorously pushed for such a mandate.

The debate reflected the different views as to whether, and if so, to what extent the ISDS system needs to be reformed or even preferably replaced by a permanent multilateral investment court (MIC).

Eventually, all present states accepted to give UNCITRAL such a broad mandate.

Although, the proponents of this mandate repeatedly reassured each other that the outcome of the work of the UNCITRAL Working Group should not be prejudged and that all options should be on the table, it was obvious for everybody in the room that the only outcome will be the creation of the MIC.

Indeed, the template for the negotiation process and draft text for the MIC will replicate the ‘Mauritius Convention approach’, which was successfully adopted for the UNCITRAL Transparency Rules for investment treaty arbitrations adopted in 2014 and which will enter into force in October 2017. A detailed report by Gabrielle Kaufman-Kohler and Michele Potestà in which they describe how the Mauritius Convention approach could serve as a model for creating the MIC provided the basis for the discussion and the eventual adoption of the mandate.

The ‘Mauritius Convention approach’ allowed for an extraordinarily fast negotiation process and contains a flexible opt-in menu for the contracting parties. Accordingly, states are free to select whether or not the UNCITRAL Transparency Rules will also apply for disputes initiated under pre-existing BITs or only for BITs which entered into force after the Transparency Rules become applicable. In addition, the unusual low requirement of only 3 ratifications for the entering into force of the Mauritius Convention is another feature, which allows for turning a negotiated text into a formally applicable legal instrument.

Considering the fact that work on the MIC is slated to start already next November and assuming that the ‘Mauritius Convention approach is’ followed, a draft text for the MIC could be on the table by the end of 2018, so that the first signatures could be put under such a text in 2019, making the MIC a reality by 2020.

In sum, the EU has successfully managed to instrumentalize UNCITRAL for its MIC idea.

Only time will tell how much traction there actually will be among states for creating the MIC.

The debate on the mandate showed that there is not yet consensus for the MIC throughout the world. While the EU, most EU Member States, Canada, some Latin American countries and South Africa seem very eager to create the MIC, in the Asian and Pacific region there seemed to be considerably less appetite. In particular, Japan, China, Singapore, South Korea, NZ and Australia, but also the USA were much more cautious and less convinced about the urgent need to replace the current ISDS system with something completely new, which may very well create new legal and policy problems.

 

29 June: DAA Investment Committee meeting with the topic: Will arbitration survive the new era of protectionism?

As chair of the DAA Investment Committee, Nikos Lavranos is honored to invite you to the 2nd meeting with the following topic:

President Trump, Brexit and elections in Europe: will arbitration survive the new era of protectionism?

We will have two high-profile panels.

The first panel will discuss whether Protectionism in Europe and the United States will lead to more national investors first?

The panel consists of:

Marten van den Berg, Director General, Dutch Ministry of Foreign Affairs
Bart Legum, Partner, Dentons, Paris
Christoph Bondy, Partner, Volterra Fietta, London

The second panel will discuss the question: How to save commercial arbitration from the same criticism as investment arbitration?

The second panel consists:

Sabine Konrad, Partner, McDermott, Will & Emery, Frankfurt
Daniella Strik, Partner, Linklaters, Amsterdam
Mélanie Van Leeuwen, Partner, Derains & Gharavi, Paris

Since places are limited, please register ASAP by sending an email to: Jorian.HAMSTER@freshfields.com

date: 29 June 2017
location: Linklaters Amsterdam office
Zuidplein 180-WTC, 1077 XV Amsterdam

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

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.

Norton Rose Fulbright and EFILA: Investor-state disputes, what will change post Brexit?

Norton Rose Fulbright and EFILA invite you to attend a panel discussion on trade, foreign investment and investor-state dispute settlement post-Brexit.

Panel discussion and drinks reception

We are pleased to host an distinguished panel of experts from industry, trade policy and investment treaty arbitration.

Topics our panel will cover include:

  • The UK’s post-Brexit relationship with the EU and non-EU countries
  • The fate of intra-EU bilateral investment treaties (BITs)
  • Trade and foreign investment protections (inward and outward bound investment)
  • Investor-state dispute settlement procedures
  • The EU’s proposed International Court System (ICS)

Speakers include:

  • Deborah Ruff, Partner, Norton Rose Fulbright
  • Chris Southworth, Secretary General, ICC UK
  • Ali Malek QC, 3 Verulam Buildings
  • Norah Gallagher, Academic Director, Energy and Natural Resources Law Institute, EFILA Advisory Board

Places for this session are limited and will be allocated on a first come first served basis. If you would like to attend please RSVP here.

Date:

Wednesday, 29 March 2017

Time:

Registration: 6:00pm

Event start: 6:30pm

Drinks & canapes: 7:30pm

Where:

3 More London Riverside

London, SE1 2AQ

United Kingdom

The ‘Mixed’ Future of the EU’s Investment Law and Arbitration Policy

by Nikos Lavranos, Secretary General of EFILA*

The year 2016 must be considered a real “annus horribilis” for the EU’s investment law and arbitration policy. The following list is just an incomplete overview of the failures of the European Commission to deliver any positive results:

  • TTIP was not concluded within the presidency of the Obama Administration and seems to be put in the freezer by President-elect Trump;
  • Even after Wallonia has been appeased, CETA is still not certain of being actually ratified by all Member States and enter fully into force, since the Court of Justice of the EU (CJEU) is going to opine on the compatibility of the investment court system (ICS) with EU law;
  • AG Sharpston recently delivered her opinion on the EU-Singapore FTA, arguing that this FTA must be concluded as a “mixed” agreement, i.e., signed and ratified by all Member States and the EU. Consequently, also this FTA will most likely face similar difficulties as CETA, in particular since it still contains the ostracized “old school” ISDS provisions.
  • The European Commission intensified its efforts of destroying the intra-EU BITs by mounting infringement proceedings against 5 Member States and by prohibiting Romania to pay out the $ 250 million Micula award and thereby fulfilling its international.
  • Similarly, the European Commission continues to intervene in all intra-EU BITs and intra-ECT disputes, trying to prevent European investors to rely on the rights granted to them by these treaties, which are still valid and in force.

In short, after 7 years since the EU obtained exclusive competence for “foreign direct investments”, the EU’s investment policy is not only practically absent but has – more importantly – created legal uncertainty and cast doubt as to the investment climate and the rule of law within the EU. This is even more disappointing in light of the unprecedented financial and economic crisis, which has hit most of the EU Member States and continues to smoulder beneath the surface. Instead of attracting new foreign direct investments, which would create jobs, the European Commission has been financing anti-ISDS, anti-investment and anti-globalization groups to scare the general public and media about something that has been in place for more than 50 years.

Looking ahead, the year 2017 should be used for pause and reflection, and ultimately, change of the chosen path.

After the CETA-drama and the Opinion of the CJEU on the EU-Singapore FTA, which will most likely follow AG Sharpeston’s analysis, the European Commission should – for a start –

accept and embrace “mixity” as the new reality. This would be a very important move by the European Commission because it could allow her to stop fighting with the Member States about competences, thereby enabling it to spend her resources on more relevant issues.

As the CETA-drama has aptly demonstrated, involving the Member States – including their regional parliaments – is a necessity in order to create any sufficient level of support for FTAs. In other words, “mixity” is a tool for increasing democratic involvement and control by the Member States and their voters. In light of the rising populism in Europe – and in light of the upcoming elections in France, Germany and Netherlands which all will take place in 2017 – this point should not to be underestimated.

In this connection, it may be advisable if the European Commission would apply the motto “less is more”. Currently, the European Commission is negotiating more than a dozen FTAs ranging from China to Tunisia. Considering the efforts, time and resources necessary for negotiating and concluding just one FTA, a prioritization of all these FTA-negotiations is essential.

In the second place, the European Commission and the European Parliament should stop stirring up the hysteria again investors, investment protection and arbitration. Investment protection and arbitration have been important and necessary elements for the promotion and protection of European investments and investors investing abroad and thereby creating jobs in Europe as well as improving the economic development in the countries of their investment destinations. Moreover, investment treaties continue to have an important role as a tool for improving the rule of law situation in many countries in the world.

Therefore, in the third place, the discourse has to change towards how investment treaties can be used as a tool for improving the functioning, efficiency and transparency of state organs across the board, in particular with the aim of eradicating corruption. This would not only benefit foreign investors but – more importantly – domestic investors and the general public.

In sum, 2017 should be the year in which the demonization of investment treaties, investment protection and arbitration has to end. Instead of spreading myths and hysteria, all relevant stakeholders should calm down and return to a fact- and merit based discourse.

As in the past years, EFILA will continue to exactly do that.

Starting with our 3rd Annual Conference on 23 February in Vienna.

At the same time calling for submissions of papers for the European Investment Law and Arbitration Review.

By requesting blogpost submssions for the EFILAblog.

By submitting its views to the public consultation on the investment court system.

Finally, by hosting the next Annual Lecture, which will be delivered by a well-known arbitration expert, sometime in the fall of 2017.

With this hopeful outlook, I wish you all a very peaceful new year.


* Nikos Lavranos, Secretary General of EFILA, visiting professor Verona University, Fellow at the WTI.