DublinICCA2008 ICCA Conference Programme www.iccadublin2008.org Monday 9 June 2008 - Morning Session Theme Working Group A: Working Group B: Arbitration Treaties/Treaty Rules-Based Solutions to Arbitration Procedural Issues THE IMPACT OF INVESTMENT The major arbitral institutions have TREATY ARBITRATION: periodically revised their rules in an IDENTIFYING THE effort to address recurring issues of arbitral procedure. The discussions in EXPECTATIONS, TESTING THE the UNCITRAL Working Group on ASSUMPTIONS Arbitration, which will soon complete a comprehensive revision of its 1976 From the negotiation of the Washington Rules, provide a useful framework to Convention through contemporary BIT identify such recurring procedural practice, the fundamental rationale for problems and how they can (or providing private parties with access to cannot) be adequately addressed by international arbitration with states arbitration rules. with which they have contracted or in The focus of Working Group B panels which they have invested has been the will therefore be on rulemaking. expectation that an effective dispute Panels will determine how recurring resolution regime will promote procedural problems should be beneficial economic activity. With addressed to ensure a fair and efficient several decades of experience, arbitral process and compare those governments are now in a position to solutions to existing rules. The make sophisticated assessments of the objective will be to provide a critique costs and benefits, in light of the full for current and future rules revisions range of relevant political and economic and guidance on how existing rules considerations, of making such recourse can be used to achieve fairness and available, and investors, too, have efficiency. The UNCITRAL discussions substantial experience against which to will provide a constant benchmark, but measure the value of treaty protection in neither the papers nor the discussions making investment decisions and the will be limited to those discussions. utility, if a dispute arises, of pursuing The reporters and commentators will arbitration. This multidisciplinary panel prepare papers, but their presentation will identify the theoretical drivers will include consideration, by use of behind investment treatymaking and hypothetical fact patterns, of concrete then examine those drivers in light of problems. empirical data and present expectations. Morning Session I Origins and theory. A: MULTI-PARTY DISPUTES 09.15 to 10.45 This panel will examine on a The UNCITRAL Working Group on multidisciplinary basis the origin, Arbitration is considering new legitimacy, and impact of treaty provisions to address issues arising in arbitration. multi-party disputes, including in connection with the appointment of Chair: arbitrators and the joinder of other Professor Gabrielle Kaufmann-Kohler parties. This panel will propose Levy Kaufmann-Kohler possible ways to address these issues Geneva and consider to what extent current or future arbitration rules accommodate Reporter: such solutions. With respect to the Professor Benedict Kingsbury question of joinder, the panel will New York University School of Law consider specifically whether rules for New York administered arbitration should give arbitral institutions a greater role in Commentators: making joinder decisions and in Professor Beth Simmons articulating the standards for doing so. Weatherhead Center for International Affairs Harvard University Cambridge, Massachusetts Monday 9 June 2008 - Morning Session - Continued Theme Working Group A: Working Group B: Arbitration Treaties/Treaty Rules-Based Solutions to Procedural Issues Arbitration Margrete Stevens Chair: King & Spalding Carlos Nehring Netto Washington, D.C. Nehring e Associados São Paulo Reporter: Nathalie Voser Schellenberg Wittmer Zurich Commentators: Cristian Conejero Roos Cuatrecasas Abogados Madrid John L. Gardiner Skadden Arps New York Morning Session II Present expectations and B. CONSOLIDATION OF CLAIMS 11.15 to 12.45 realities. The UNCITRAL Working Group is This panel will examine the considering provisions that would expectations and objectives of current provide for a single determination of users and affected constituencies. related claims arising under separate contractual instruments. This panel Reporter: will propose possible ways to address Professor Christopher Greenwood such questions of consolidation and London School of Economics consider to what extent current or London future arbitration rules accommodate such solutions. Commentators: Judge Charles N. Brower Chair: Iran-United States Claims Tribunal Professor Dr. Iván Szász The Hague Squire Sanders Budapest Professor Brigitte Stern Université de Paris I Reporter: Paris Professor Michael Pryles Australian Centre for International Commercial Arbitration Sydney Commentators: Eduardo Goncalves Barretto Ferreira, Kujawaski, Brancher e Gonçalves Sao Paulo Brazil Professor Nayla Comair-Obeid Obeid Law Firm Beruit Summary Commentator: Professor Pierre Tercier University of Fribourg Fribourg Monday 9 June 2008 - Afternoon Session Theme Working Group A: Working Group B: Arbitration Treaties/Treaty Rules-Based Solutions to Arbitration Procedural Issues INVESTMENT TREATY ARBITRATION AND COMMERCIAL ARBITRATION: ARE THEY DIFFERENT BALLGAMES? As BITs proliferated and BIT arbitrations followed, both arbitrators and practitioners from the world of international commercial arbitration entered the field, so that now the two universes largely overlap. Does that overlap obscure fundamental differences to which we should pay greater attention? This panel will examine that question from the standpoint first of the legal regime governing the arbitration and then of the actual conduct of the proceeding. The legal framework. Afternoon Session I Pure commercial arbitration happens as SUMMARY DISPOSITION 2 to 3.30 a matter of contract, solely through the The AAA International Arbitration Rules consent of the actors, though its expressly allow the tribunal to “direct the effectiveness relies in the end on a parties to focus their presentations on network of national and international issues the decision of which could dispose of law. The legal norms it applies will be all or part of the case.” Tribunals operating drawn from a wide variety of legal under other rules often entertain systems. Treaty arbitration, on the other applications for summary disposition even hand, is a creature solely of international without an express statement of their law, and the standards it applies will authority in the applicable rules. The recent also be drawn from both conventional revision of the ICSID rules grants ICSID and customary international law, tribunals the authority summarily to dismiss generated by both, so to speak, a claim by granting an objection that “a legislative and judicial processes. Even claim is manifestly without legal merit.” so, it, too, seeks to rely on national legal Such objections have often been raised in systems to ensure its effectiveness. Do investment treaty disputes as objections to these characteristics warrant different the jurisdiction of the tribunal or the treatment of the proceedings as a legal admissibility of a claim, including when a matter, or do the differences arise solely proceeding was governed by ICSID or because of the involvement of a state UNCITRAL Rules. such that they can be addressed by The proposed UNCITRAL revisions do not prudent application of broadly address the question of summary applicable doctrine and procedure? Is it disposition. This panel will examine when feasible to conduct treaty arbitration and how summary disposition should be under rules that also serve in used, articulate guidelines for the exercise of commercial disputes, or do we need to the authority, and consider to what extent generate additional sets of rules, other current or future arbitration rules should than ICSID, expressly designed for take account of the practice. investor-state disputes? Chair: Chair: Dr. Werner Melis V. V. Veeder Q.C. Vienna International Arbitral Centre (VIAC) Essex Court Chambers Vienna London Monday 9 June 2008 - Afternoon Session - Continued Theme Working Group A: Working Group B: Arbitration Treaties/Treaty Rules-Based Solutions to Procedural Issues Arbitration Reporter: Reporter: Professor Campbell McLachlan QC Judith Gill Victoria University of Wellington Allen & Overy Bankside Chambers (Auckland) & London Essex Court Chambers (London) Commentators: Commentators: Teresa Giovannini Brooks Daly Lalive Permanent Court of Arbitration Geneva The Hague Louise Barrington Professor Bernard Hanotiau King's College London Hanotiau & van den Berg Brussels Michael Collins, S.C. Dublin Afternoon Session II The actual conduct. PROVISIONAL MEASURES 4 to 5.30 The need for a substantive- The UNCITRAL Working Group recently knowledge base aside, are there completed and the Commission approved distinct challenges of conducting a model legislative texts governing treaty arbitration as compared to a provisional measures. The Working Group pure commercial one? Do different has now turned its attention, in light of strategic choices and advocacy that work, to revision of Article 26 of the considerations arise? This panel will Rules. ICSID has also recently enacted address a range of issues that may revisions to its rules designed to facilitate include choice of arbitrators, the the expeditious handling of applications pursuit of contract claims through for provisional measures by the arbitral treaty arbitration,