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Investment Treaty Arbitration and International Law - Volume 1

 
Price:
$125.00
ISBN: 978-1-933833-18-7
Author: Todd Weiler, Editor
Page Count: 356
Published: August 2008
Media Desc: 1 Hardcover. Table of Cases. Index.
Qty:
 
 
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Description

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About the Book:

The number of investment treaty arbitration cases filed each year is increasing rapidly.

This publication contains the papers and proceedings of Juris Conferences first annual conference on Investment Arbitration and reflects a trend that also exists in investment treaty arbitration: a coming together of the new and the familiar. The conference format included a group of ten "up and coming" members of the investment treaty arbitration bar, who drafted the papers that appear in the chapters of this book. The topics of their papers were discussed and debated amongst a group of treaty arbitration veterans, many of whom are currently drafting the awards and essays that have and will form the corpus of international investment law. Their contributions to this project can be found in the five-session transcripts also contained within this volume.

The five topics addressed in this volume are certainly contemporary but should nonetheless remain relevant to practitioners and academics for years to come.

They include:

  • A Look Inside the Umbrella Clause Debate
  • Are the ICSID Rules Governing Nationality and Investment Working?
  • The Necessity Defense for Investment Law
  • MNF Treatment
  • National Treatment – Is Discriminatory Intent Relevant?
Table of Contents

Table of Contents:

Introduction
TJ Weiler

  PART I
UMBRELLA CLAUSE


Chapter 1
Where’s My Umbrella? An “Ordinary Meaning” Approach to Answering Three Key Questions that Have Emerged from the “Umbrella Clause” Debate

Craig S. Miles

Chapter 2
Containing the Scope of the Umbrella Clause

Laura Halonen



Chapter 3
Where's My Umbrella? A Look Inside The Umbrella Clause
Craig Miles, Laura Halonen, Andrea J. Menaker, Kaj Hober, Thomas Walde, Graham Coop, Uche Onwuamaegbu
PANEL DISCUSSION

PART II
ICSID INVESTMENT


Chapter 4
A Notion of ICSID Investment

Devashish Krishan

Chapter 5
ICSID’s Nationality Requirements

Anthony C. Sinclair

Chapter 6
Are the ICSID Rules Governing Nationality & Investment Working?

Devashish Krishan, Anthony C. Sinclair, Charles H. Brower, II, David D. Caron, William W. Park, Christoph Schreuer, Pieter H.F. Bekker
PANEL DISCUSSION

 

PART III
NECESSITY DEFENSE


Chapter 7
Protection of essential interests in the BIT era

Gabriel Bottini

Chapter 8
BITs & Economic crises: Do States have carte blanche?

Roberto Aguirre Luzi

Chapter 9
Is There a Need for the Necessity Defense For Investment Law?

Gabriel Bottini, Robert AguirreLuzi, David R. Haigh, Margrete Stevens, Andrea K. Bjorklund, Marinn Carlson, Alex De Gramont
PANEL DISCUSSION

 

PART IV
MOST-FAVORED-NATION ClAUSES


Chapter 10
MFN Clauses, Procedural Rights, and a Return to the Treaty Text

Noah Rubins


Chapter 11
MFN and Procedural Rights: Solutions from WTO Experience?

Walid Ben Hamida

Chapter 12
FN Treatment - What Are Its Limits In The Investment Context?

Noah Rubins, TJ Weiler, Carolyn B. Lamm, Charles N. Brower, Don Wallace, Michael Woods
PANEL DISCUSSION

 

PART V
NATIONAL TREATMENT


Chapter 13
National Treatment – Is Discriminatory Intent Relevant?

Borzu Sabahi

Chapter 14
Beyond the Smoking Gun – is a Discriminatory Objective Necessary to Find a Breach of National Treatment?

Sylvie Tabet

Chapter 15
National Treatment – Is Discriminatory Intent Relevant?

Borzu Sabahi, Sylvie Tabet, Ian A. Laird, Stephen Jagusch, TJ Weiler, Gonzalo Flores, Jack J. Coe, Jr
PANEL DISCUSSION

Table of Cases
Index

Author Detail

About the Editor:
TODD WEILER is an investment treaty counsel and arbitrator and noted expert on NAFTA Chapter 11. He is the co-founder of Investmentclaims.com and the publisher of NAFTAClaims.com.


Contributors include:

PIETER H.F. BEKKER
is a Partner in the International Dispute Resolution Group at McDermott Will & Emery LLP in New York. He is an Adjunct Professor of International Arbitration at Fordham University School of Law in New York and a member of the Executive Council of the American Society of International Law. Prior to entering private practice, Dr. Bekker worked in the Registry of the International Court of Justice.

ANDREA K. BJORKLUND
is a Professor at the University of California, Davis, School of Law who specializes in international economic law, international arbitration and litigation, international trade, and conflict of laws. Before starting at Davis, she spent two years as a Bigelow Fellow and Lecturer in Law at the University of Chicago Law School and from 1999-2001, Ms. Bjorklund was an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State, where she defended the United States in investor-State arbitrations brought under the NAFTA.

GABRIEL BOTTINI
serves as Counsel in the Office of the Attorney General for the Government of Argentina. He has represented his country in a large number of bilateral investment treaty cases and has written widely on the subject.

CHARLES N. BROWER
is a member of 20 Essex Street Chambers. During his career in international arbitration Judge Brower has served as counsel, arbitrator and expert witness in numerous ad hoc and institutional arbitration proceedings. A well known author and long-standing member of the American Society of International Law, Charles N. Brower served as Judge of the Iran-United States Claims Tribunal and as a member of the United Nations Compensation Commission.

CHARLES H. BROWER II
is Jessie D. Puckett, Jr., Lecturer and Croft Associate Professor of International Law at the University of Mississippi Faculty of Law. A noted author on international investment and dispute settlement, Professor Brower currently serves on the Executive Council of the American Society of International Law and the Executive Committee of the Institute for Transnational Arbitration (ITA).

MARINN CARLSON
Partner, Sidley Austin LLP, Washington, DC

DAVID D. CARON
is the C. William Maxeiner Distinguished Professor of Law at the University of California at Berkeley. Professor Caron is a member of the U.S. Department of State Advisory Committee on Public International Law and serves as a Vice President of the American Society of International Law, and Chair of the Institute of Transnational Arbitration of the Center for American and International Law. Professor Caron served as Commissioner with the Precedent Panel (E2) of the United Nations Compensation Commission in Geneva, resolving claims arising out of the 1990 Gulf War, and acted as Counsel for Ethiopia before the Ethiopian - Eritrean Claims Commission in 2005. He currently serves as a Member of two NAFTA tribunals.

JACK J. COE, Jr.
is a Professor of Law at Pepperdine University School of Law, specializing in private international law. Professor Coe is an elected member of the American Law Institute, admitted to practice in California and Washington, and a member of the Chartered Institute of Arbitrators, London. He is a co-chair of the International Commercial Dispute Resolution Committee of the ABA International Law Section, and chairs the Academic Council of the Institute for Transnational Arbitration. Professor Coe has served as both counsel and expert in investor-state arbitrations.

GRAHAM COOP
has served as General Counsel at the Energy Charter Secretariat since 2004. Prior to joining the Secretariat, Mr. Coop was partner with Denton Wilde Sapte's Energy and Infrastructure Department in London for two years and spent 10 years at the Paris office of Freshfields Bruckhaus Deringer, where he served as Head of the firm's Energy and Natural Resources Group.

ALEX DE GRAMONT
Partner, Crowell & Moring LLP, Washington, DC

GONZALO FLORES
is Senior Counsel at the ICSID. In this capacity, Mr. Flores has served as tribunal secretary in a large number of proceedings instituted under the ICSID Convention, the ICSID Additional Facility Rules and the UNCITRAL Arbitration Rules.

DAVID R. HAIGH is Senior Partner at burnet, Duckworth & Palmer LLP, Calgary.

LAURA HALONEN
is an Attorney in the Paris office of Freshfields Bruckhaus Deringer. She has been involved in a large number of international commercial arbitrations and both ad hoc and ICSID proceedings under bilateral investment treaties.

WALID BEN HAMIDA is Professor of International Law at the Universite d'Evry (Sciences Po), Paris. Dr. Hamida has previously taught at the University of Paris II, the University of Paris Dauphine, the University of Bucharest (college Franco-Roumain) and the University of Paris V.


KAJ HOBÉR
is a Partner of Mannheimer Swartling in the Stockholm office, and Professor of East European Commercial Law at Uppsala University, Uppsala.

STEPHEN JAGUSCH
is a Partner in the London office of Allen & Overy LLP. Co-chair of the firm's international arbitration practice, Mr. Jagusch specialises in international commercial and investment treaty arbitration, having acted as adviser and advocate in dozens of ad hoc and institutional international arbitrations, both in favour of, and against, sovereign states.

DEVASHISH KRISHAN
is an Attorney at Baker Botts, London. Dev Krishan has wide experience before a variety of international tribunals. He has previously been an assistant legal counsel at the Permanent Court of Arbitration in The Hague and has clerked for the Chief Justice of India.

IAN LAIRD
is Counsel with the international arbitration practice of Crowell Morning LLP in Washington D.C. He is the co-founder and Editor-in-Chief of Investmentclaims.com. Mr. Laird was involved as counsel in some of the earliest NAFTA arbitrations and is currently involved in a number of investment treaty arbitrations.

CAROLYN B. LAMM
is a Partner in the Washington, D.C. office of White & Case, LLP. A member of the ICSID panel of arbitrators, Ms. Lamm has represented a large number of claimants and respondents in investor-state arbitrations.

ROBERTO J. AGUIRRE LUZI
is a Special Legal Consultant in the International Arbitration Practice Group of King & Spalding's Houston office. Mr. Aguirre Luzi's practice focuses on international arbitration with an emphasis on international public law. He has been involved in numerous ICSID and UNCITRAL arbitrations, particularly involving the natural resources and utilities sectors.

ANDREA J. MENAKER
is Chief of the NAFTA Arbitration Division in the Office of the Legal Adviser for the U.S. Department of State. She also participates in the negotiation of dispute resolution and investment provisions in U.S. free trade agreements and bilateral investment treaties. Prior to working for the Department of State, Professor Menaker was a law clerk for the U.S. District Court for the Southern District of New York and worked for several years as an associate for Shearman & Sterling.

CRAIG MILES
is a Partner in King & Spalding's Houston office and has served as first chair on numerous ICSID and ad hoc arbitrations.

UCHE ONWUAMAEGBU
is Senior Counsel at ICSID. In addition to management of arbitral proceedings, he actively participates in ICSID's knowledge dissemination program and coordinates various institutional initiatives at the Centre including amendments to the Rules and Regulations of the Centre. Prior to joining ICSID in 2001, Mr. Onwuamaegbu was a Senior Legal Officer at the United Nations Compensation Commission. Mr. Onwuamaegbu is a Barrister of the Supreme Court of Nigeria and a Solicitor of the Supreme Court of England and Wales. He presently serves as a co-Chair of the International Courts Committee of the American Bar Association's International Law Section.

WILLILAM W. PARK
is Professor of Law at Boston University. He is General Editor of Arbitration International, Vice President of the London Court of International Arbitration, and a member of the NAFTA Financial Services Roster. Park served as Arbitrator on the International Commission on Holocaust Era Insurance Claims and the Claims Resolution Tribunal for Dormant Accounts in Switzerland.

NOAH RUBINS
is Counsel in the International Dispute Resolution and public international law practice groups of Freshfields Bruckhaus Deringer, Paris, France. He has served as counsel in numerous investor-state arbitrations.

BORZU SABAHI
is a Consultant working in the International Arbitration Group of Fulbright & Jaworski LLP in Washington D.C. He is an Adjunct Professor and SJD Candidate at the Georgetown University Law Center.

CHRISTOPH SCHREUER
is a Professor of International Law at the University of Vienna. He spent most of his academic career at the Department of International Law of the University of Salzburg and has also served as the Edward B. Burling Professor of International Law and Organization at the Paul H. Nitze School of Advanced International Studies (SAIS) of the Johns Hopkins University in Washington, DC. He has published numerous articles and several books in the field of international law, including a 1500-page monograph called: The ICSID Convention: A Commentary.

ANTHONY C. SINCLAIR
is an Attorney in the International Arbitration Group of Allen & Overy LLP, London. He is admitted as a Solicitor in England and Wales and a Barrister and Solicitor of the High Court of New Zealand. He has been counsel in numerous investment treaty arbitrations under ICSID and UNCITRAL arbitration rules, ICSID annulment proceedings, and international commercial arbitration proceedings generally. Anthony Sinclair is also the author of numerous articles and chapters on international investment law and arbitration.

MARGRETE STEVENS
is a Consultant with King & Spalding LLP in Washington D.C. She was formerly ICSID's Acting Lead Counsel, a position she had held for two years. The co-author of one of the first monographs on the protection of foreign investment in international law, Ms. Stevens has personal experience with dozens of investment treaty arbitrations held under the ICSID Rules.

SYLVIE TABET
is a Senior Counsel & Deputy Director in the Trade Law Bureau of the Department of Foreign Affairs & International Trade, for the Government of Canada. She has represented her country in a number of arbitrations under the NAFTA and has provided advice to her Government on the negotiation of its foreign investment protection agreements.

THOMAS WÄLDE
was the Jean-Monnet Chair on European Economic and Energy Law at the University of Dundee's Centre for Energy, Petroleum & Mineral Law & Policy and is a member of Essex Court Chambers in London. He serves as Editor-in-Chief of the OGEL Global Energy Law Web Portal, Transnational-dispute-management.com and the OGEMID electronic discussion group.

MICHAEL WOODS
is a Partner at Heenan Blaikie, Ottawa.

Reviews

Praise for the Investment Treaty Arbitration and International Law - Series:

"This volume is not for the beginner, nor was it meant to be. It does not provide answers to the many open and difficult questions in the area of investment treaty arbitration, for the simple reason that there are none. The publication is invaluable, however, for anyone who wishes to follow and understand the developments and the debates in this field. We look forward to the Third Annual Investment Treaty Arbitration Conference and the book that will come in its wake."
- Kaj Hóber, Partner, Mannheimer Swartling, Stockholm; Professor of International Law, Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP), University of Dundee.

"Todd Grierson Weiler, the guiding hand and organizer of the conference in Washington DC in 2007 which led to this book, has taken the traditional conference materials book and adopted the formula most brilliantly for the distinctive discipline that is investment treaty arbitration and international law. ...The papers are reproduced in full in the book and are products of much scholarship and hard work. These are not conference papers which one occasionally sees -- namely shorter presentation pieces designed for ready consumption by an audience -- rather they are highly thoughtful and challenging works which command careful reading. ...While the papers throughout do not always reflect the personal views of the authors – they were assigned a thesis to advance/defend, much in the same way that one argues for a client's case regardless of personally-held views – the approach is a particularly important one and marks out the book's contribution to international law. ...This book represents and contains an important and contemporary contest of ideas and thoughts given by those who are in practice in this field.

This is not a book for the novitiate, nor is it a ready guide-book to investment treaty arbitration; this is a thought-provoking and substantial presentation of ideas in five particular topics and rightly deserves its place in the library of all who practice in this area. It is not a book for one to settle down and digest in one easy bite -- this book requires and commands time to properly consider. It is all the better for that attribute. Further volumes are awaited with much anticipation."
- Klaus Reichert, Brick Court Chambers is a Barrister and Chartered Arbitrator. He is Co-Chair of the IBA Litigation Committee, is a member of the LCIA European Users' Council, the ICC Commission on Arbitration, IBA delegate to the Hague Conference on Private International Law.

"This is a very wide-ranging work that brings together several generations of legal specialists from very different cultures of law; it includes highly original, even brilliant contributions."
- Droit Et Pratique Des Investissements Internationaux - (International Investments Law And Practice)