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A Liber Amicorum: Thomas Wälde A Liber Amicorum: Thomas Wälde Law Beyond Conventional Thought "A Liber Amicorum: Thomas Wälde - Law Beyond Conventional Thought" Edited by Jacques Werner & Arif Hyder Ali Republished on OGEL and TDM with kind permission from CMP Publishing Ltd. Also available as download via http://www.ogel.org/liber-amicorum.asp or http://www.transnational-dispute-management.com/liber-amicorum.asp For more information about the catalogue of books and journals of CMP Publishing visit www.cmppublishing.com Thomas Wälde (1949–2008) A Liber Amicorum: Thomas Wälde Law Beyond Conventional Thought Edited by Jacques Werner & Arif Hyder Ali CAMERON MAY I N T E R N A T I O N A L L A W & P O L I C Y Copyright © CMP Publishing Cameron May is an imprint of CMP Publishing Ltd Published 2009 by CMP Publishing Ltd 13 Keepier Wharf, 12 Narrow Street, London E14 8DH, UK Tel: +44 (0) 20 7199 1640 Fax: +44 (0) 20 7504 8283 Email: [email protected] Website: www.cmppublishing.com All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the publisher. This book is sold subject to the condition that it shall not by way of trade or otherwise, be lent, resold, hired out, or otherwise circulated without the publisher’s prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. ISBN 10: 1-907174-01-8 ISBN 13: 978-1-907174-01-8 Printed in the United Kingdom by Good News Digital Books CONTENTS Foreword vii Jacques Werner & Arif Hyder Ali Search Engines, Copyright and Innovative Business Models: 1 How Google Sought to Monopolize/Free [Delete as Appropriate] the Printed Word Charlott e Wälde Legal Issues of OPEC Production Management Practices: An 15 Overview Melaku G. Desta Dispute Prevention and Dispute Sett lement: Refl ections on 33 Discussions With Thomas Wälde Hew R. Dundas The Wisdom of International Commercial Mediation and 43 Conciliation William F. Fox Going to Pieces Without Falling Apart: Wälde’s Defence of 55 ‘Specialisation’ in the Interpretation of Investment Treaties John P. Gaff ney Investment Treaties and Domestic Courts: A Transnational 69 Mosaic Reviving Thomas Wälde’s Legacy Walid Ben Hamida The Changing Face of Political Risk in the Energy Industry 87 Mirian Kene Kachikwu Fat Cats and ‘Windfall’ Taxes in the Natural Resources Industry: 99 Legal and Political Analysis in the light of Modern Investment Treaties Abba Kolo Professor Thomas Wälde: In Memoriam of the Friend 121 Andrey Konoplyanik Global Financial Crisis to Put The PSA Regime in Russia Back on 133 the Agenda Andrey Konoplyanik Interpretation in International Investment Arbitration – Through 151 the Looking Glass Ian Laird Thomas on the Formation of International Arbitral Tribunals: 165 ‘The Conversation’ Michael McIlwrath Bifurcation of Title in International Oil & Gas Agreements 171 A. Timothy Martin Investment Claims and Arbitrator Comportment 183 William Park A United Nations’ Liaison Hub and Ombudsoffi ce in 211 International Economic Relations: A Proposal Chitra Radhakishun Courts and Arbitration: Forming Choices for Young Lawyers 211 Klaus Reichert Investment Treaties and the Russian Bear: Baiting the Bear? 239 Noah Rubins & Azizjon Nazarov Moral Damages in International Investment Law: Some 253 Preliminary Thoughts in the Aftermath of Desert Line v Yemen Borzu Sabahi At What Time Must Legitimate Expectations Exist? 265 Christoph Schreuer & Ursula Kriebaum Unlawful or Bad Faith Conduct as a Bar to Claims in Investment 277 Arbitration Abby Cohen Smutny & Petr Polášek Contributors 297 Remembrances 305 Foreword Thomas Wälde: professor, arbitrator, lawyer, mentor, strategist, maverick, unconventional thinker, innovator, father, husband, friend all rolled into one. This is the Thomas we knew and loved, and to him this Liber Amicorum is dedicated. When Charlott e asked, we of course readily accepted the honor to serve as co-editors of this Liber Amicorum. And with that honor, came the need for us to fi nd the words and sentiments to express what Thomas meant to us and to so many across the electronic world of international law, intellectual exchange, and academic thought that Thomas created and nurtured. For how does one capture in a few words all that Thomas contributed to us professionally and personally? There was – thankfully – nothing brief about Thomas, and brevity was – thankfully – never his forte. Born in 1949, Thomas grew up in Heidelberg and went to school at the Kurfuerst-Friedrich-Gymnasium. He studied law at the Universities of Heidelberg, Lausanne-Geneva, Berlin and Frankfurt, gaining an LLM from Harvard Law School along the way. In 1980, he joined the UN and later became UN Interregional Adviser on international investment policy and petroleum/mineral legislation. He advised over 670 governments on legislative reform and contract negotiations with international investors. He was also, from 1981 to 1983, UN investigator on occupation practices in Palestinian territories and was responsible for the Secretary General’s reports on ‘Permanent Sovereignty over Natural Resources’ and on the Permanent Sovereignty in Occupied Palestinian Territories. He initiated the UN project for environmental guidelines in mining and was chair of the drafting group that produced the fi rst version of the ‘Berlin Guidelines’ in 1990. In 1991, he joined the University of Dundee as Director of the Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP). He was later awarded by the European Commission a Jean-Monnet chair in European Economic and Energy Law. Under his leadership the Centre underwent a period of spectacular growth and is now a major international institution in its fi eld for graduate studies and research. To a great extent he developed this Centre in his own image, international and inter-disciplinary, combining academic excellence and professional vii A Liber Amicorum: Thomas Wälde relevance. Many of its alumni hold leading positions in governments and major institutions infl uencing policy and practice at the highest level throughout the world. After stepping down from the post of Director in 2001, he maintained his role as a teacher and expanded his activities in the fi eld of dispute resolution and arbitration, where he quickly enhanced his already formidable reputation. Whilst at the University of Dundee, Thomas came up with the idea to extend his global network to develop an extraordinary virtual campus of leading practitioners and scholars around the world, who became part of the Dundee intellectual family, in many cases without every having set foot in Scotland. In recent years, OGEL became an important instrument in these networks. After a meeting in 2002 with the MARIS team, he started to work with them on OGEL and published the fi rst issue in 2003. After an OGEL special issue on ‘Dispute Management in the Oil, Gas and Energy Industries’, Thomas wanted to have an opportunity to focus on international arbitration in general as well and so he came with the idea for TDM following the same concept as OGEL. The fi rst issue of TDM came in February 2004. Both publications have since gained popularity with international companies, governmental organizations, law fi rms, international agencies, academic and think-tank institutions. There are so many of Thomas’ accomplishments that could easily inform these lines, although perhaps the one that became so important to so many of us is the OGEMID on-line forum – a forum that refl ected Thomas’ understanding of technology and its role in intellectual development, that refl ected his ability to move issues and agendas, and that connected legal and non-legal professionals from around the world in a democracy of legal dialogue, debate and thought. He urged us all to participate. No idea was too small or too mundane. And no contributor too inexperienced or ineloquent. And through this forum and all of his other activities and boundless energy and zest, he created a community and part of his legacy. He became a virtual and in-person mentor, friend and guide to the forum’s many participants; and, of course, to many others as well. Thomas urged us never to forget that humor and laughter are at the fount of intellectual liberation and the source of creative thinking. Above all, he dedicated himself to asking people to think ‘outside of the box’. Take conventional wisdom, he would urge, turn it upside down, shake it, look at it from all angles and take nothing for granted. Only then will the right answer be found. In this sense, Thomas was, and will always be remembered as, the epitome of George Bernard Shaw’s ‘unreasonable man’: viii Foreword The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man. Evident from the preceding paragraphs about Thomas’ life and career is the fact that this book is but a modest eff ort to capture Thomas’ never ending interests. His legacy, however, is far greater and one that, in its own way, will continue to impact the world of international law for many decades to come. The editors would like to give their sincere thanks to all the authors for their hours of labor in dedication to this Liber Amicorum, to Arthur Warden for his careful and diligent editorial assistance, to Michael Laughton for his tenacious and diplomatic management of this project, and to Jessica Ferrante for her constant and able assistance. Jacques Werner, Geneva, September 2009 Arif Hyder Ali, Washington DC, September 2009 ix Search Engines, Copyright and Innovative Business Models: How Google Sought to Free/ Monopolise [Delete as Appropriate] the Printed Word Charlott e Wälde* I.
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