Originally from Investment Treaty Arbitration and International Law Volume 17

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DR. TODD J. WEILER: Welcome back. I just need to note that one of our authors, Tom Whip, was unable to join us here today, but we do have his collaborator on the draft paper distributed to our panelists, Marco de Sousa. Our other author for this panel, Rodrigo, is someone with whom I’ve had the pleasure to work frequently over the past five or six years. We’re grateful that he wasn’t phased at all when, on a conference call on another matter, I called him out and told him it was time for him to become an author. 

We’re also thrilled to have one of our returning champions as moderator, Tim Nelson of Skadden Arps. We’re grateful you’ve been able to join us once more, Tim.

MR. TIMOTHY NELSON: Thank you very much, Todd, thank you always for the opportunity to discuss investor state arbitration in this forum, which is always at the cutting edge of current issues, as we just saw from that excellent keynote address. So it was, I believe, over 50 years ago, that David Bowie asked us, is there life on Mars? And it falls to me today to put the question, will investor state mediation emerge as the preferred mechanism to resolve investor state disputes? Equally enigmatic proposition, I think. And we have, to my right, as Todd just mentioned, we have two authors who’ve argued, they’ve been instructed to argue the pros and cons of investor state mediation as opposed to investor state arbitration. And so, we have summoned the spirit of the author, Tom Whip for the affirmative, we have Marco de Sousa. Now, Tom, is an associate at Herbert Smith in London, and as I understand you’re a senior associate at Herbert Smith, in New York, but nevertheless deeply acquainted with the issue, especially over the last 24 hours. And you’ll do a great job. And for the opposing proposition, we have Rodrigo Aguilar Guízar from the Aguila and Loera in Mexico City. But you’ll argue the negative as you have very ably in the paper that you’ve submitted for everyone to read, a very cogent presentation. So, without any further ado, I’ll introduce our panel once we get to the panel discussion. But why don’t we start with Marco?

MR. MARCO DE SOUSA: It’s a pleasure to be here. And my thanks to all of the organizers for having me at the last minute. That’s a bit better. Yes, as Todd said, I’m a lead substitution for Mr. Whip. So, I will trespass on Todd’s prohibition on disclaimers and say that, to the extent that I stray beyond Tom’s paper that is entirely of my own doing. As mentioned, I’m here arguing for the proposition that investor state mediation will emerge as the preferred mechanism to resolve investor state disputes.