Investment Treaty Forum
Twenty Ninth ITF Public Conference Treaty Law Issues in International Investment Law
Friday, 20 October 2017 The British Academy, 10-11 Carlton House Terrace, London SW1 5AH
Delegate Pack
Lunch Sponsored by Media Partner #itflaw
Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
CONTENTS
CONFERENCE OVERVIEW ...... 1
PRACTICAL INFORMATION ...... 1
AGENDA ...... 2
SPEAKER BIOGRAPHIES ...... 4
INVESTMENT TREATY FORUM ...... 12
NOTES ...... 14
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
CONFERENCE OVERVIEW
Questions of applicability, interpretation and succession of treaties are decisive for resolution of many investor-state disputes. Although States can be bound by treaties under international law, investors are not parties to treaties but still have rights and obligations under international investment law.
Complex issues of treaty law may arise at the stage of entering into effect and application of unratified investment treaties, for example related to the impact of unratified treaties on customary international law and provisional application of unratified treaties, such as the Energy Charter Treaty.
When applying and interpreting international treaties, tribunals also deal with issues of application of investment treaties in the context of territorial changes and armed conflicts. They also rely on the Vienna Convention on the Law of the Treaties and engage other extraneous legal rules and actors for treaty interpretation.
On 20 October 2017 leading arbitrators, practitioners and academics, drawn primarily from ITF members will gather in London to discuss the interplay between law of treaties and international investment law at the Twenty Ninth ITF Public Conference.
PRACTICAL INFORMATION
Venue
The British Academy, 10-11 Carlton House Terrace, London SW1Y 5AH
Nearest Underground stations
Charing Cross (Cockspur Street exit) – 6 minute walk to venue Piccadilly Circus (Lower Regent Street exit) – 7 minute walk to venue
Wi-Fi access
Username: 10-11cht Password: hospitality
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
AGENDA
8:30-9:00 | Registration with tea/coffee
9:00-9:15 | Welcome and introduction
Professor Yarik Kryvoi, Investment Treaty Forum, British Institute of International and Comparative Law
9:15-10:00 | Keynote address
Professor Campbell McLachlan QC, Victoria University of Wellington Law School, New Zealand
10:00-11:30 | Panel 1: Entering into Effect and Application of Unratified Investment Treaties
Chair: Maurice Mendelson QC, Blackstone Chambers, United Kingdom
Davinia Aziz, Attorney-General’s Chambers/National University of Singapore, Singapore Graham Coop, Volterra Fietta, United Kingdom Professor Emmanuel Gaillard, Shearman & Sterling, France
11:30-12:00 | Tea/coffee break
12:00-13:30 | Panel 2: Application and interpretation of international treaties
Chair: Sir Frank Berman KCMG QC, Essex Court Chambers, United Kingdom
Romesh Weeramantry, Clifford Chance, Hong Kong David Gaukrodger, OECD, France Professor Tomoko Ishikawa, Nagoya University, Japan
13:30-14:30 | Lunch
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
14:30-16:00 | Panel 3: Termination, withdrawal, succession of investment treaties
Chair: Paula Hodges QC, Herbert Smith Freehills, United Kingdom
Professor Nicolas Angelet, Liedekerke Wolters Waelbroeck Kirkpatrick, Belgium David Goldberg, White & Case, United Kingdom Professor Yarik Kryvoi, British Institute of International and Comparative Law, United Kingdom
16:00-16:30 | Closing remarks
Audley Sheppard QC, Clifford Chance and ITF Advisory Board, United Kingdom
This programme is subject to change.
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
SPEAKER BIOGRAPHIES
Professor Campbell McLachlan QC
Victoria University of Wellington Law School (New Zealand)
Keynote Speaker
Campbell McLachlan QC is Professor of Law at Victoria University of Wellington and an Associate Member of Bankside Chambers (Auckland & Singapore) & Essex Court Chambers (London). He is author (with Weiniger & Shore) of International Investment Arbitration: Substantive Principles (2nd edition, Oxford UP, 2017). He is a Specialist Editor of Dicey, Morris & Collins on the Conflict of Laws (15th edn 2012) and Joint Editor-in-Chief of ICSID Review–Foreign Investment Law Journal.
In 2015, he was elected to the Institut de Droit International and is Rapporteur of its 18th Commission on Equality of Parties before International Investment Tribunals. He is a member of the ICSID Panel of Arbitrators, serving as President or member of a number of international arbitral tribunals under the auspices of ICSID, the PCA and the ICC. He holds an LL B (Hons) degree from Victoria University of Wellington, a PhD from the University of London and the Diploma cum laude of The Hague Academy of International Law.
Professor Nicolas Angelet
Liedekerke Wolters Waelbroeck Kirkpatrick (Belgium)
Nicolas Angelet is professor of international law in the Université Libre de Bruxelles (ULB), a partner with the Belgian law firm Liedekerke, and an associate tenant of Doughty Street Chambers.
Nicolas’ areas of expertise cover all aspects of public international law, including investment law and investor-state dispute settlement, immunities, the law and governance of international organisations, international law against corruption, human rights, UN and unilateral sanctions, territorial regimes and the law of armed conflicts. He is a member of the ICSID panel of conciliators (appointed by Belgium) and of the ICSID panel of arbitrators (appointed by Burundi).
Nicolas has served as counsel on issues of international law to governments, international organisations, corporations and individuals, before domestic courts in various countries, as well as in international proceedings, including ICSID, PCA, ICJ, the UN Human Rights Committee, subsidiary organs of the UN Security Council and the European Court of Human Rights.
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
Davinia Aziz
Attorney-General's Chambers/National University of Singapore (Singapore)
Davinia is Senior State Counsel in the International Affairs Division of the Attorney-General’s Chambers. At the AGC, Davinia provides legal services to Singapore Government agencies on the full spectrum of public international law issues. She has particular practice interests in the law of the sea and maritime boundaries, international dispute settlement, and the legal work of the United Nations. At NUS, Davinia teaches a course on international organizations. She has also published on this topic in the International Organizations Law Review (Brill) and the Asian Journal of International Law (Cambridge University Press).
Davinia holds law degrees from the New York University School of Law, where she was a Hauser Global Scholar, the University of Oxford, and the National University of Singapore.
Sir Frank Berman KCMG QC
Essex Court Chambers (UK)
Sir Franklin (Frank) Berman joined HM Diplomatic Service in 1965 and was the Legal Adviser to the Foreign & Commonwealth Office from 1991-99. For the past 17 years he has been in practice in Essex Court Chambers specializing in international arbitration and advisory work in international law. He is Visiting Professor of International Law at Oxford and the University of Cape Town.
His 50-year career in international law and diplomacy has spanned a wide and varied field, including settlement of disputes; the law of treaties; State responsibility; diplomatic and State immunity; maritime delimitation; the law of the Continental shelf; outer space and nuclear energy; the law of international organisations; the UN Security Council; the laws of war and neutrality; international criminal tribunals; and numerous other areas.
Sir Frank has served as Judge ad hoc on the International Court of Justice in the Case concerning Certain Property (Liechtenstein v. Germany) and was appointed by the Lord Chief Justice as the Legal Member of the Court of Arbitration in the Kishenganga dispute between Pakistan and India under the Indus Waters Treaty. He successfully represented Cambodia before the International Court in the Case concerning the Temple of Préah Vihear (Interpretation).
He was appointed by the British Government in 2004 to the list of Arbitrators under the ICSID Convention, and is currently sitting or has recently sat in five ICSID arbitrations as Chairman and seven as Party- appointed Arbitrator (both claimant and host State), and in five ICSID annulment proceedings, as well as in arbitrations under the ICC, PCA, Stockholm Arbitration Institute and LCIA (sole arbitrator), and ad hoc.
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
He is the former Chairman of the BIICL Board of Trustees, and also the former chair of the Diplomatic Service Appeal Board, and the Appeals Boards of the WEU and IOPCF. In 2001 he was appointed jointly by the Governments of the USA and Austria to be the Chairman of the Claims Committee of the General Settlement Fund for the Compensation of Victims of Nazi Persecution, a position he still holds. In 2006 he was awarded the Grand Decoration of Honour in Gold with Star of the Republic of Austria, and in 2014 the Grand Cross of the Royal Cambodian Order.
Since 2010 he has been a Member of the Permanent Court of Arbitration.
Graham Coop
Volterra Fietta (UK)
Graham is qualified as a barrister and solicitor in New Zealand and as a solicitor in England and Wales. He advises and represents companies, governments and international organisations on international dispute resolution and public international law, with a particular focus on the energy, natural resources and infrastructure sectors, together with environmental, banking and defence issues. He also advises sovereign clients on jurisdictional immunities issues under public international law, including in the context of judicial proceedings before European courts. His work on contentious matters has focused on the Energy Charter Treaty, investment treaties, price revisions under long- term energy sale contracts, and maritime boundary delimitation. He has appeared as counsel, advocate and expert before a wide range of international courts and tribunals, including the International Court of Justice, ICSID, the PCA and the ICC.
Before joining Volterra Fietta, Graham served for 7 years as General Counsel to the Energy Charter Secretariat, a Brussels-based international organisation responsible for the Energy Charter Treaty. As General Counsel, Graham participated in intergovernmental negotiations on emergency dispute resolution issues and energy transit. He also led the development of the Model Agreements for Cross-Border Pipeline Projects and for Cross-Border Electricity Projects. Graham’s career includes over 15 years in private practice.
Graham is an Honorary Associate of the Graduate School of Natural Resources Law, Policy & Management of the University of Dundee’s Centre for Energy, Petroleum and Mineral Law and Policy. He is an honorary member of the Investment Treaty Forum of the British Institute of International and Comparative Law. He is a member of the Editorial Committee of the International Energy Law Review and of the Journal of Energy & Natural Resources Law. He has lectured at numerous universities around Europe and is listed in the Who’s Who in Public International Law.
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
David Gaukrodger
Organisation for Economic Co-operation and Development (France)
David Gaukrodger is Head of Unit and Senior Legal Adviser at the OECD Investment Division. He leads analysis at the OECD about investment treaties and dispute settlement under those treaties, and provides support for the work of an investment Roundtable that regularly gathers OECD, G20 and other governments. Current work is addressing among other things the balance of investor protection and the right to regulate; and arbitrators, adjudicators and appointing authorities. Other recent work has addressed joint governmental interpretations, state-to-state dispute settlement, shareholder claims for reflective loss, and investor-state dispute settlement.
Earlier David led expert teams evaluating compliance by countries with the OECD Anti-Bribery Convention. He also helped design the G20-mandated peer review system used by a Global Forum that evaluates the compliance of 120+ jurisdictions with standards for the exchange of tax-related information. Prior to joining the OECD, David was a Special Counsel with Sullivan & Cromwell LLP. David graduated from Sciences Po Paris with a “mention lauréat” and obtained law degrees with distinction from the University of Toronto and the Université de Paris I. He was a law clerk for Justice Gerard La Forest at the Supreme Court of Canada.
David Goldberg
White & Case (UK)
David is a partner and solicitor-advocate in White & Case’s Global International Arbitration Group.
David divides his time between London and Moscow and is recognized by leading legal directories for the strength of his Russian, CIS and Eastern European practice. He is one of only three lawyers in the world ranked Band 1 for "Dispute Resolution - Russia (Expertise Based Abroad)" by Chambers Global 2016.
David has experience of both investment and commercial arbitrations conducted under all major arbitral institutions and rules and also represents clients in court proceedings concerning the conduct of arbitral proceedings, including the enforcement or challenge to arbitral awards, the appointment of arbitrators and applications for interim measures such as disclosure and worldwide freezing orders. He is also regularly appointed as an arbitrator.
David is a founder, trustee and the Secretary General of the Anglo-Russian Law Association, a co-founder and the Deputy Chairman of the Board of the Russian Arbitration Association and a board member of the LCIA.
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
Professor Emmanuel Gaillard
Shearman & Sterling (France)
Emmanuel Gaillard founded and heads Shearman & Sterling’s 100-lawyers International Arbitration practice. He has advised and represented companies, States and State-owned entities in hundreds of international arbitrations. He also acts as arbitrator and expert witness.
Over the course of his career, Emmanuel Gaillard has acted on many of the largest international disputes submitted to arbitration. In addition to the USD 50 billion award secured for the majority shareholders of the former Yukos Oil Company, he acted on the ICC arbitration brought by The Dow Chemical Company against Petrochemical Industries Company of Kuwait, which led to a USD 2.47 billion award in favor of Dow, previously distinguished as the largest arbitral award rendered in the history of international arbitration.
A Professor of Law in France currently acting as a Visiting Professor of Law at Yale Law School, Emmanuel Gaillard has written extensively on all aspects of arbitration law, in French and in English. Co-author of a leading treatise in the field (Fouchard Gaillard Goldman On International Commercial Arbitration), he also authored the first published essay on the legal theory of international arbitration. The volume, originally published in French (Aspects Philosophiques du droit de l’arbitrage international), was subsequently published in English (Legal Theory of International Arbitration), as well as in Arabic, Chinese, Spanish, Hungarian and Portuguese translations.
Emmanuel Gaillard has been appointed by France on the ICSID Panel of Arbitrators. He regularly acts as expert for the OECD, UNCTAD, and UNCITRAL. In 2010, he was appointed as expert by UNCITRAL for the drafting of the forthcoming UNCITRAL Secretariat Guide on the New York Convention.
He chairs the International Arbitration Institute (IAI) and was the first President and one of the co-founders of the International Academy for Arbitration Law.
Paula Hodges QC
Herbert Smith Freehills (UK)
Paula heads Herbert Smith Freehills' Global Arbitration Practice and has over 25 years' experience of advising on international disputes, particularly in the energy, telecommunications and technology sectors. She specialises in international arbitration and has represented clients in many jurisdictions (including London, Paris, Geneva, Zurich, Stockholm, the US, Canada, Dubai, Africa, Asia, Russia and the CIS) in ad hoc arbitration and proceedings under the auspices of the major arbitral institutions. She also sits as an arbitrator.
Paula has been closely involved in several high profile cases before the High Court in London, and has also appeared before the Court of Appeal and House of Lords (now the Supreme Court). Paula studied law at the University of Cambridge and graduated in 1986 with an M.A. in Law. Paula is a member of the LCIA Board and Vice President of the LCIA Court. She became a QC in 2014.
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
Professor Tomoko Ishikawa
Nagoya University (Japan)
Tomoko Ishikawa is Associate Professor at Nagoya University in Japan. She is a member of the ICSID Panel of Conciliators, appointed by the Chairman of the ICSID Administrative Council, and a member of the Legal Advisory Committee of the Energy Charter Treaty. Her professional experiences include serving as a Judge at Tokyo District Court and holding the position of Deputy Director at the International Legal Affairs Bureau of the Ministry of Foreign Affairs of Japan, where she worked on bilateral/trilateral investment treaties, Free Trade Agreements and WTO dispute settlement.
Her recent publications include: Case Comment: Marco Gavazzi and Stefano Gavazzi v. Romania - A New Approach to Determining Jurisdiction over Counterclaims in ICSID Arbitration? ICSID Review (2017, forthcoming); Restitution as a ‘Second Chance’ for Investor-State Relations: Restitution and Monetary Damages as Sequential Options, 3 McGill Journal of Dispute Resolution (2016-2017) and Provisional Application of Treaties at the Crossroads between International and Domestic Law, 31(2) ICSID Review (2016).
Professor Yarik Kryvoi
British Institute of International and Comparative Law (UK)
Professor Yarik Kryvoi is the Senior Research Fellow in International Economic Law and Director of the Investment Treaty Forum.
He is a Professor of Law at the University of West London (part-time) and teaches arbitration at the Chartered Institute of Arbitrators. He has several years of experience practicing international dispute resolution with Freshfields Bruckhaus Deringer in London, Morgan Lewis & Bockius in Washington, DC and Baker & McKenzie in Saint Petersburg. He is the founding editor of the CIS Arbitration Forum and serves on editorial boards of several international legal periodicals.
Professor Kryvoi is a former Co-Chair of the ABA International Courts and Tribunals Committee and has also has served as a counsel for the Economic Court of the Commonwealth of Independent States advising on issues of international administrative law. He holds law degrees from Harvard, Moscow, Nottingham, Utrecht and St Petersburg. He is admitted to practice in the State of New York.
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
Maurice Mendelson QC
Blackstone Chambers (UK)
Maurice Mendelson is a barrister (Queen’s Counsel) at Blackstone Chambers, London, specializing in public international law. He has been in practice at the English and international Bar since 1971; from 1968 to 2001 he also held academic posts at the Universities of Oxford and London, most recently the Chair of International Law at University College, London University, from which he took early retirement in order to concentrate on his practice.
Amongst his main specialities is the law of international investment protection. He has sat as an ICSID arbitrator; acted as counsel both for claimants and for respondent states; helped to negotiate investment protection treaties; advised governments on their investment protection legislative and treaty programmes; advised companies and individuals on aspects of the structuring of their investments; and given expert evidence to the Supreme Courts of various states and to international arbitral tribunals.
He has published widely in this field, and is Consultant Moderator (formerly Moderator-in-Chief) of OGEMID, the leading list serve in international arbitration and mediation.
Audley Sheppard QC
Clifford Chance and ITF Advisory Board (UK)
Audley is a Partner and Co-Head of the International Arbitration Group at Clifford Chance LLP, based in London. He specialises in the resolution of major disputes arising out of infrastructure and energy projects, and international trade and investment. He also sits as an arbitrator (over 30 appointments).
His professional activities include: Chairman of the LCIA Board; Visiting Professor, School of International Arbitration, Queen Mary, London; Editorial Boards of Business Law International, Journal of International Arbitration, International Arbitration Law Review; and Advisory Board, BIICL Investment Treaty Forum, and Arbitration Ireland.
He is a former: Vice-President of the LCIA Court (2013-2016); Member of the ICC Court (2008 – 2012); Co-Chair of the IBA Arbitration Committee (2006-08); Rapporteur of the ILA Arbitration Committee (1996- 2006). He graduated with LLB (Hons) and B.Commerce (Victoria Univ. of Wellington, NZ) and LLM (Cambridge, England). He was appointed a Queen's Counsel in 2015.
His recent publications include: "The Approach of Investment Treaty Tribunals to Evidential Privileges" (ICSID Review, 2016); "English Arbitration Act 1996" in "Concise International Arbitration" (Kluwer, 2015) (ed. Loukas Mistelis); ‘Commentary on UK Investment Treaty’, in “Commentaries on Selected Model Investment Treaties” (OUP, 2013) (with Chester Brown); ‘Applicable substantive law’, in “Arbitration in England” (Kluwer, 2013) (eds Julian Lew & ors); ‘Human rights responsibilities in the oil and gas sector: applying the UN Guiding Principles’, in JWEL (2013, vol. 6, no 2) (with Rae Lindsey, Anthony Crockett & ors). He has New Zealand and Ireland nationality.
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
Dr Romesh Weeramantry
Clifford Chance (Hong Kong)
Dr Romesh Weeramantry is a Foreign Legal Consultant at Clifford Chance in Hong Kong. He specializes in investment treaty disputes and complex cross- border commercial arbitrations. He has previously worked at the Iran-United States Claims Tribunal and at the United Nations Compensation Commission, which resolved claims resulting from Iraq's invasion of Kuwait. His publications include The Hong Kong Arbitration Ordinance: Commentary and Annotations (2nd edition, Sweet & Maxwell 2015), Treaty Interpretation in Investment Arbitration (Oxford UP 2012); and International Commercial Arbitration: An Asia-Pacific Perspective (Cambridge UP 2011).
He is a General Editor of the Asian Dispute Review, a General Arbitration Editor of the Hong Kong White Book and is an Adjunct Professor of Law at the University of Hong Kong. He also serves on the Editorial Board of the ICSID Review, the IBA Subcommittee on Investment Treaty Arbitration and the Hong Kong Arbitration Charity Ball Committee.
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
INVESTMENT TREATY FORUM
Overview
The Investment Treaty Forum (ITF) was founded in 2004. Its aim is to provide a global centre for serious high level debate in the field of international investment law.
The Forum is a membership-based group, bringing together some of the most expert and experienced lawyers, business managers, policy advisers, academics and government officials working in the field. Like BIICL itself, the Forum has a reputation for independence, even-handedness and academic rigour.
The Forum membership is by invitation only.
People
Patrons
The Patrons of the Forum are: HE Judge Rosalyn Higgins DBE QC, Professor Florentino Feliciano and Yves Fortier CC QC.
Forum Director
The Forum Director is Professor Yarik Kryvoi
The Advisory Board
Since its inception the Investment Treaty Forum's programme has been guided on an informal basis by a small Advisory Board which currently comprises:
Professor Andrea Bjorklund, McGill University; Professor A Vaughan Lowe, All Souls College Oxford and Essex Court Chambers; Loretta Malintoppi, 39 Essex Chambers, London; Audley Sheppard, Clifford Chance LLP, London; Robert Volterra, Volterra Fietta, London.
The Public International Law Advisory Panel of the British Institute of International and Comparative Law also provides useful advice and support to the Forum.
Membership
The ITF's strength lies in its membership, which is drawn from as wide a range of backgrounds as possible. Members meet regularly (typically 3-4 times each year) to discuss topical issues and, where appropriate, to develop views on issues of concern to governments and decision-makers. The Forum also has strong links with related institutions (including the UK Foreign and Commonwealth Office, the UNCTAD and many others).
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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack
Benefits of membership
Key benefits for ITF members include:
The opportunity to participate in an independently-run Forum that aims to influence investment treaty law and policy, providing an arena for ongoing and constructive debate with relevant actors A direct influence on the agenda of Forum meetings and the opportunity to recommend topics for debate The opportunity to suggest research or other work to be carried out by the Forum staff Access to research carried out by the Forum Director and other staff A place at each Forum meeting, as well as free attendance for nominated Forum members at public conferences and discussions related to the field General BIICL individual membership benefits for nominated representatives of each Forum member The opportunity to recommend guest speakers to be invited to Forum discussions and conferences.
Conditions of membership
Forum membership is limited by invitation only, to ensure the highest quality in its plenary discussions. To guarantee continuity, and manageability of debate, membership is for named individuals only. However, at the time of joining, members may nominate a senior colleague to represent them on those occasions when they are unable to attend meetings.
Membership rates
Membership of the ITF is available at the following annual rates (exclusive of VAT):
Corporate membership: £2,750 Individuals: £500
The Forum membership is by invitation only. For more information on ITF membership please visit www.biicl.org/investmenttreatyforum or contact Professor Yarik Kryvoi ([email protected]).
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BIICL @BIICL #itflaw [email protected] www.biicl.org | www.biicl.org/investmenttreatyforum