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.

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

Protecting International Commercial Arbitration in Europe

by Chris Wilford, Chartered Institute of Arbitrators*

The current highly politicised debate surrounding the inclusion of investor-to-state dispute settlement (ISDS) in the Transatlantic Trade and Investment Partnership (TTIP), which allows investors to bring claims against a State before an international arbitral tribunal, has brought arbitration into the spotlight.

While ISDS is a special form of arbitration and the circulation of myths about the investment protection regime, such as the characterisation of arbitration tribunals as “secret courts” and that they are somehow biased towards investors continue to be spread, this development threatens to bring other forms of arbitration into disrepute: including international commercial arbitration.

In light of this threat of mixing ISDS with international commercial arbitration, it is important to recall the basic notions of arbitration and emphasise the advantages of international commercial arbitration.

Arbitration is a formal and private dispute resolution process where arbitrators imposes an impartial and independent judgement on the parties, with their authority derived from private agreement. Its strengths are that it provides a final and binding award, it is confidential and that those in dispute can choose an independent neutral who usually has significant expertise in the relevant field.

More specifically, international commercial arbitration plays a key role in supporting global commerce and gives businesses confidence that they will have access to redress across the world.

International commercial arbitration is a tool that is regularly used to resolve complex contractual disputes across every sector of the economy. This includes the confidential resolution of disputes associated with construction and infrastructure projects, high value technology solutions, and the pharmaceutical industry.

Europe is the leading centre for international commercial arbitration. It is estimated that over a third of arbitrations in the world that take place annually are seated in Europe, which is home to leading centres such as London, Paris and The Hague. The value of legal exports to the UK economy alone is estimated to be worth some £3.1 billion per annum by TheCityUK.

It is important to highlight that international commercial arbitration is operating within a well functioning legal framework, such as the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the “New York Convention”). This Convention ensures that the over 150 States that are party to it respect arbitration agreements and enforce them by their court systems. In addition, numerous arbitration institutions, such as the ICC and the LCIA, provide the necessary institutional and administrative support for allowing international commercial arbitration to take place effectively and efficiently.

CIArb, which celebrates its 100th anniversary, is itself an important institution that ensures and the high level quality of arbitrators through its training and development programme. It is mandated by its Royal Charter to promote all forms of private dispute resolution worldwide. As well as delivering education, training and qualifications, CIArb works through its international network of members to develop the learned society within alternative dispute resolution (ADR).

With the unprecedented scrutiny of private dispute resolution as a result the inclusion of ISDS in TTIP and the Trans-Pacific Partnership (TPP) negotiations, CIArb has been playing a leading role in engaging politicians, policymakers and wider civil society to tackle the myths being circulated about ADR and promote its benefits. This has included the launch of the CIArb London Centenary Principles for an effective, efficient and ‘safe’ seat in international arbitration at our London Centenary Conference.

The CIArb London Centenary Principles are not another set of model rules for an arbitral institution. They are principles which recognise that the importance of international arbitration today and the loosening of ties between international arbitration and national law requires a number of key characteristics to make a particular place an appropriate and effective arena in which to conduct international arbitration; including professional bodies helping to provide a framework for the ethical conduct of international arbitration at work.

Investors frequently use arbitration to settle disputes between themselves. If arbitration was indeed biased, businesses would not have the confidence to use it international commercial arbitration as a dispute settlement mechanism in commercial contracts.

Indeed, a recent study of the European Parliament came to the conclusion that commercial arbitration may facilitate the EU’s goals of ensuring access to efficiently-delivered justice and dispute resolution.

At a time when Europe is emerging from a deep economic crisis, the EU should recognise that international commercial arbitration supports international investment, jobs and economic growth. Europe also faces increasing competition in international commercial arbitration from emergent centres in the Americas and the Far East. It is therefore critical that any action taken in relation to ISDS does not jeopardise Europe’s leading position in international commercial arbitration.

These are just some of the reasons why international commercial arbitration must be protected in Europe. For the same reasons, international commercial arbitration and ISDS need to be clearly distinguished in the public debate. If not, Europe’s reputation as a neutral and independent destination for commercial arbitration, where the rule and law and right to property as expressed in the Charter of Fundamental Rights of the European Union are respected and upheld, could be tarnished for a generation.


Chris Wilford, Head of Policy & Public Affairs, Chartered Institute of Arbitrators (CIArb), London, CWilford@ciarb.org