Originally from Investment Treaty Arbitration and International Law Volume 17

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DR. TODD J. WEILER: It’s now time for our keynote address. I’ve known Abby for a long time. Although I wasn’t able to prepare this introduction, I knew I had a solid backup: Abby’s incredibly impressive White and Case profile, containing accolades from the profession’s leading authorities. Abby Cohen Smutny is the Global Head of White and Case’s award-winning international arbitration practice. She is recognized as one of only four Global Band 1 practitioners by chambers global. She has been described in Chambers as fantastic and as a phenomenal lawyer without doubt, and a major force in treaty arbitration, as well as smart, practical, and both aggressive and diplomatic. Chambers also observed that she is renowned for her thorough preparation as well as for her vigorous and energetic advocacy. For its part, the Global Arbitration Review calls her a motivational powerhouse with overwhelming determination and motivation to succeed. But my favorite of all the accolades is this: Abby is “virtually unrivaled knowledge of state responsibility, and investor state for treaty protection.” What better speaker could we possibly have than Abby Cohen Smutny?

MS. ABBY COHEN SMUTNY: Thank you. Thank you. I want to thank the conference organizers, Juris and Crowell and Moring for allowing me to address you today. We all are aware of the barrage of criticisms broadcast regularly today aimed at investor-State dispute resolution.  It is described prominently as an obstacle to the world’s energy transition goals and, for various reasons, more fundamentally, as an institution – that, if not to be eliminated entirely, is certainly in need of “reform”. 

I offer today for your consideration a number of comments on the topic. While thinking about what I might discuss today, I read a recent article by a law professor describing investment treaty protections, and especially investment treaty arbitration, as unjustified privilege for foreigners. The thesis of the article was that the “problem of foreign privilege” was one of the challenges to the legitimacy of the existence of investment treaty standards and of investor-State arbitration.

We live in a time when we are focused with renewed attention on equality in our rules and institutions—and we ask ourselves to reconsider some of the most basic questions—why are we doing what we are doing.  So, it is natural that we re-examine these things from time to time, and it is best to do so honestly and with an open mind.

We might start by observing that the basic substantive rules embodied in investment treaties and that form the basis of claims in investment arbitration did not originate with the goal of encouraging greater cross-border investment. We often cite historical examples that formed the precursor to what we now refer to as investment protections and investor-State arbitration. The historical examples by-in-large are international adjudications of disputes regarding the treatment of foreigners and their property arising out of revolution, armed conflicts, and war.