Investment Treaty Arbitration and International Law - Volume 9
This volume contains the papers and proceedings of the ninth annual Juris Conference addressing the complex issues raised by investor-state arbitration, and in particular these issues in the context of disputes in the natural resources sector. Over a quarter of all investor-state arbitration commenced in 2013 alone arose out of disputes related to oil, gas and mining projects. With the continued importance of natural resource exploitation to the wealth of many states, and a resurgence of resource nationalism in parts of the world, it is not unexpected that related disputes with foreign investors continue to figure prominently in investment treaty arbitration. The four topics addressed in this book include:
• The Role of Domestic Property Rights in Investment Treaty Arbitration – A Misleading Rubric?
• Lost on the Way to Chorzów: Have Arbitrators Just Been Paying Lip Service to the PCIJ’s Seminal Case in their Damages Analyses?
• Lawful Versus Unlawful Expropriation: Is this a Distinction Without a Difference?
• Burdens and Standards of Proof for Corruption – Is the Allegation of Claimant Corruption by a State a Sufficient Basis on which Tribunals may Deny an Investment Claim?
TABLE OF CONTENTS
Introduction
The Stability Function of Natural Resource Arbitration
Frédéric G. Sourgens
PART I
The Role of Domestic Property Rights in Investment Treaty Arbitration – A Misleading Rubric?
Chapter 1
Are the Right Rights Protected? The Literalist Approach to Determining Protected Rights in International Investment Agreements
Matthew N. Drossos, Suyash G. Paliwal, and Isabella Bellera Landa
CHAPTER 2
Protecting Property Rights in Investment Treaty Arbitration – A Misleading Rubric?
Samantha J. Rowe
Chapter 3
Protecting “Property” Rights in Investment Treaty Arbitration —A Compound Definitional Dilemma
PANEL DISCUSSION
Dr. Lawrence Shore
Dr. Alexander Bělohlávek
Mr. David Hesse
Mr. Ben Love
Dr. Gaëtan Verhoosel
Mr. Babatunde Ajibade
PART II
Lost on the way to Chorzów: Have arbitrators just been paying lip service to the PCIJ’s seminal case in their damages analyses?
CHAPTER 4
When it Comes to Applying Chorzów, Arbitrators are Staying on the Marked Paths
Mallory Silberman
Diora M. Ziyaeva
PANEL DISCUSSION
Mr. Timothy Nelson
Dr. José Alberro
Ms. Josefa Sicard-Mirabel
Professor Pablo T. Spiller
Dr. Jennifer Vanderhart
Dr. Herfried Wöss
Chapter 7
Keynote Address Transcript
Michael Reisman
PART III
Lawful versus Unlawful Expropriation: is this a Distinction Without a Difference?
CHAPTER 8
Lawful Versus Unlawful Expropriation: Heads I Win, Tails You Lose
Christina L. Beharry
CHAPTER 9
Compensation in the Context of Unlawful Expropriations
Rafael Cox Alomar
Chapter 10
Lawful Versus Unlawful Expropriation: Is this a Distinction without a Difference?
PANEL DISCUSSION
Mr. Michael Nolan
Ms. Marinn Carlson
Mr. Grant Hanessian
Professor Joongi Kim
Professor Steven Ratner
Mr. Alexander Yanos
PART IV
Burdens and Standards of Proof for Corruption – is the allegation of claimant corruption by a state a sufficient basis on which tribunals may deny an investment claim?
James J. Saulino
David H. Weiss
PANEL DISCUSSION
Mr. Stephen Jagusch
Mr. Alex de Gramont
Mr. Jonathan Gimblett
Mr. Teddy Baldwin
Dr. Aloysius Llamzon
Mr. Wantao Yang
Editors:
Ian A. Laird is Co-chair of Crowell & Moring’s International Dispute Resolution Group and practices in the firm’s Washington, D.C. office. He is an adjunct professor at Columbia University School of Law and Georgetown University Law Center. He represents a range of clients in international arbitration proceedings involving disputes between corporations and foreign sovereign governments. He is the co-founder and Editor-in-Chief of OUP’s Investmentclaims.com and Co-Director of the International Investment Law Center at the International Law Institute (ILI) in Washington, D.C.
Borzu Sabahi practices international arbitration and public international law in Curtis, Mallet-Prevost, Colt & Mosle LLP’s Washington, D.C. office. He is an Adjunct Professor of law at Georgetown and Columbia Law Schools where he co-teaches seminars on investor-state dispute resolution and international oil & gas development. He is Editor of Oxford’s Investmentclaims.com and Co-Director of the International Investment Law Center at the ILI. He has widely published on international arbitration and regularly speaks at conferences.
Frédéric G. Sourgens is an Associate Professor of Law at Washburn University School of Law and Managing Editor of Investmentclaims.com. Professor Sourgens publishes widely in international and transnational law and has served as counsel and legal expert in many international disputes.
Todd J. Weiler is an independent counsel, arbitrator and expert consultant on investment treaty arbitration. Highly regarded for his engaging and creative style, Dr. Weiler is widely recognized as a leading expert on the NAFTA and CAFTA, the history of international investment law, and on investor-state dispute settlement generally.
"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."
- Kaj Hóber, Partner, Mannheimer Swartling, Stockholm; Professor of International Law, Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP), University of Dundee.
"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 former 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)
Editors:
Ian A. Laird is Co-chair of Crowell & Moring’s International Dispute Resolution Group and practices in the firm’s Washington, D.C. office. He is an adjunct professor at Columbia University School of Law and Georgetown University Law Center. He represents a range of clients in international arbitration proceedings involving disputes between corporations and foreign sovereign governments. He is the co-founder and Editor-in-Chief of OUP’s Investmentclaims.com and Co-Director of the International Investment Law Center at the International Law Institute (ILI) in Washington, D.C.
Borzu Sabahi practices international arbitration and public international law in Curtis, Mallet-Prevost, Colt & Mosle LLP’s Washington, D.C. office. He is an Adjunct Professor of law at Georgetown and Columbia Law Schools where he co-teaches seminars on investor-state dispute resolution and international oil & gas development. He is Editor of Oxford’s Investmentclaims.com and Co-Director of the International Investment Law Center at the ILI. He has widely published on international arbitration and regularly speaks at conferences.
Frédéric G. Sourgens is an Associate Professor of Law at Washburn University School of Law and Managing Editor of Investmentclaims.com. Professor Sourgens publishes widely in international and transnational law and has served as counsel and legal expert in many international disputes.
Todd J. Weiler is an independent counsel, arbitrator and expert consultant on investment treaty arbitration. Highly regarded for his engaging and creative style, Dr. Weiler is widely recognized as a leading expert on the NAFTA and CAFTA, the history of international investment law, and on investor-state dispute settlement generally.
"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."
- Kaj Hóber, Partner, Mannheimer Swartling, Stockholm; Professor of International Law, Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP), University of Dundee.
"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 former 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)
TABLE OF CONTENTS
Introduction
The Stability Function of Natural Resource Arbitration
Frédéric G. Sourgens
PART I
The Role of Domestic Property Rights in Investment Treaty Arbitration – A Misleading Rubric?
Chapter 1
Are the Right Rights Protected? The Literalist Approach to Determining Protected Rights in International Investment Agreements
Matthew N. Drossos, Suyash G. Paliwal, and Isabella Bellera Landa
CHAPTER 2
Protecting Property Rights in Investment Treaty Arbitration – A Misleading Rubric?
Samantha J. Rowe
Chapter 3
Protecting “Property” Rights in Investment Treaty Arbitration —A Compound Definitional Dilemma
PANEL DISCUSSION
Dr. Lawrence Shore
Dr. Alexander Bělohlávek
Mr. David Hesse
Mr. Ben Love
Dr. Gaëtan Verhoosel
Mr. Babatunde Ajibade
PART II
Lost on the way to Chorzów: Have arbitrators just been paying lip service to the PCIJ’s seminal case in their damages analyses?
CHAPTER 4
When it Comes to Applying Chorzów, Arbitrators are Staying on the Marked Paths
Mallory Silberman
Diora M. Ziyaeva
PANEL DISCUSSION
Mr. Timothy Nelson
Dr. José Alberro
Ms. Josefa Sicard-Mirabel
Professor Pablo T. Spiller
Dr. Jennifer Vanderhart
Dr. Herfried Wöss
Chapter 7
Keynote Address Transcript
Michael Reisman
PART III
Lawful versus Unlawful Expropriation: is this a Distinction Without a Difference?
CHAPTER 8
Lawful Versus Unlawful Expropriation: Heads I Win, Tails You Lose
Christina L. Beharry
CHAPTER 9
Compensation in the Context of Unlawful Expropriations
Rafael Cox Alomar
Chapter 10
Lawful Versus Unlawful Expropriation: Is this a Distinction without a Difference?
PANEL DISCUSSION
Mr. Michael Nolan
Ms. Marinn Carlson
Mr. Grant Hanessian
Professor Joongi Kim
Professor Steven Ratner
Mr. Alexander Yanos
PART IV
Burdens and Standards of Proof for Corruption – is the allegation of claimant corruption by a state a sufficient basis on which tribunals may deny an investment claim?
James J. Saulino
David H. Weiss
PANEL DISCUSSION
Mr. Stephen Jagusch
Mr. Alex de Gramont
Mr. Jonathan Gimblett
Mr. Teddy Baldwin
Dr. Aloysius Llamzon
Mr. Wantao Yang