Investment Treaty Arbitration and International Law - Volume 3
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About this Item
Title: Investment Treaty Arbitration and ...
Publisher: Juris Net
Publication Date: 2010
About this title
With this third volume of our series on formative issues in investment law and arbitration, our latest group of talented, young authors continues to meet the high standards set by their predecessors. In the Spring of 2009, our authors met with an experienced cast of discussants to delve deeply into four pressing topics which remain every bit as relevant today, as the 2010 conference date approaches. Either of the first two topics, canvassed herein, could form the basis of a formidable manuscript. The first goes to the very nature of the international commercial arbitration model, as a means of dispute settlement for public international law issues involving State responsibility and the protection of foreign investment. The concept of consent is fundamental to international arbitration, but it can be elusive in practice. It is one thing to consent to the settlement of some future class of disputes in the abstract, upon signing the contract or implementing the treaty, but quite another when the day of disagreement arrives. The customary international law rules of treaty interpretation have evolved over many years so as to provide two or more States with a coherent and reliable means of construing the terms they chose when negotiating an agreement, despite the inherent contradiction that exists in giving binding, legal force to words of diplomacy, which are inherently vague by nature. In the first section, below, our authors and panelists have added their respective contributions to better understanding the jurisdictional nexus between consent and treaty interpretation. In the second section, an issue is confronted that arguably lurks beneath all regulatory impairment claims: the question of whether and if so, how deference should be accorded to measures and the officials who supply and enforce them. Our authors tackle this topic using the lens of the European Community Law concept of margins of appreciation. As investment treaty tribunals proliferate, and the topics the address turn from traditional expropriation claims to regulatory impairment claims, the question of whether a margin of appreciation should be observed will likely grow even more pressing. The third section of this book contains contributions on a topic that is new to investment arbitration, albeit the concept is not uncommon within the municipal context: moral damages. While some treaty provisions expressly preclude tribunals from issuing an award on the grounds of moral damages, the very existence of cases in which moral damages have been awarded demonstrates the heterogeneity of the treaties under which investment treaty arbitrations take place. The fourth section of this book arises from the that same fact of heterogeneity amongst treaty obligations, as well as the mechanisms for dispute settlement they contain. Arbitration is not ideally suited to serve as the basis for articulation and reinforcement of a set of binding norms. It is not intended for the production of rudiments for establishing some sort of common law of international investment. Rather, international arbitration is intended to provide an efficient, fair and binding means of resolving an isolated dispute between the parties to the arbitration, and only those parties. This final session of the 2009 conference was dedicated to better understanding expectations that have arisen for the conduct of investment treaty arbitration, on a systemic level. Does it matter when two tribunals, seized of similar facts and authorised under similar treaty provisions, come to different conclusions? Do different conclusions have a deleterious impact upon the legitimacy of the system itself? The answer would appear to be that just as beauty lies in the eyes of the beholder legitimacy lies in whatever expectations are held for the successful operation of an investment treatyAbout the Author:
About the Editors: Ian A. Laird is a Special Legal Consultant in the International Dispute Resolution Group of Crowell & Moring LLP in Washington, DC. His practice is focused in the field of international investment law and arbitration. He is the co-founder and Editor-in-Chief of OUP Investmentclaims.com. Todd J. Weiler is an independent arbitrator, counsel and expert on the NAFTA and investment treaty arbitration, and an adjunct professor at the University of Western Ontario Faculty of Law. In 1998, Mr. Weiler founded naftaclaims.com; in 2007 he co-founded investmentclaims.com; and in 2009 he was named to a special editorial committee responsible for the OGEMID forum and the Transnational Dispute Settlement web site. Nina P. Mocheva is an investment policy and promotion specialist at the Investment Climate Department of the World Bank Group. She is also a consultant for IFC’s Alternative Dispute Resolution product development. Before joining the World Bank, she practiced with the International Arbitration and Litigation Groups of White & Case LLP in Washington, DC. AUTHORS José Alvarez, Hamilton Fish Professor of Law & Diplomacy, Columbia Law School Yulia Andreeva, Associate, Debevoise & Plimpton LLP, New York Jennifer Cabrera, Associate, Skadden, Arps, Slate, Meagher & Flom, New York Wade M. Coriell, Partner, King & Spalding, Houston Silvia M. Marchili, Foreign Legal Consultant, King & Spalding, Houston Christina Cathey Schuetz, Associate, Clifford Chance, London Kassi D. Tallent, Associate, Crowell & Moring LLP, Washington, D.C. Alexandre Vagenheim, Associate, Castaldi Mourre & Partners, Paris, Lecturer, University Paris I Panthéon-Sorbonne Sarah Vasani, Associate, King & Spalding LLP, Washington, D.C. PANELISTS Stanimir A. Alexandrov, Sidley & Austin LLP Charles H. Brower, University of Mississippi School of Law Tai-Heng Cheng, New York Law School and Houguet Newman Regal & Kenney LLP Alexandre De Gramont, Crowell & Moring LLP Stephen L. Drymer, Ogilvy Renault LLP Monica C. Fernandez-Fonesca, Ministry of Foreing Trade of Costa Rica Claudia Frutos-Peterson, Curtis, Mallet-Prevost, Colt & Mosle LLP Oscar Garibaldi, Covington & Burling LLP Hamid Gharavi, Derains Gharavi & Lazareff Jean Kalicki, Arnold & Porter LLP Mark Kantor, Independent Arbitrator Louis B. Kimmelman, Allen & Overy LLP Andrea Menaker, White & Case LLP Timothy G. Nelson, Skadden, Arps, Slate, Meagher & Flom LLP Joseph R. Profaizer, Paul, Hastings, Janofsky & Walker LLP Borzu Sabahi, Fulbright & Jaworski LLP Jonathan Sutcliffe, Fulbright & Jaworski LLP Don Wallace, International Law Institute Felix Weinacht, Milbank, Tweed, Hadley & McCloy LLP Alex Wilbraham, Freshfields Bruckhaus Deringer LLP
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