Aceris Law co-sponsored a one-day-conference on international arbitration and the protection of foreign investments organised on June 2, 2017 by Student Societies from 4 French universities: the Association des Juristes de Droit International (Paris 1 Panthéon-Sorbone), the Association du Master 2 de Droit International Economique (Paris 2 Panthéon-Assas), the Association des Anciens Etudiants de Droit International de Nanterre (Paris Ouest Nanterre La Défense) and the Sciences Po Arbitration Society (Sciences Po) at the Centre Panthéon in Paris.
Four panels of prominent legal scholars and practitioners discussed significant changes to the protection of foreign investments, questioning to what extent recent treaty drafting and practice suggests a reaffirmation of the State.
The topic of the first panel was the evolution of mechanisms of substantive protections of foreign investment. The first presentation dealt with the distinction between competence and admissibility, underscoring contrasting practices between international jurisdictions and arbitral tribunals. The second panellist discussed the fair and equitable treatment standard, emphasising the fact that, after allowing the freedom of interpretation of arbitrators, States now tend to circumscribe its scope and effects through a new wording of fair and equitable treatment clauses. In the third presentation, it was emphasised that the use of expropriation clauses seems to be gaining importance, whereas the scope of such clauses remains uncertain. Finally, the last panellist considered non-discrimination (most favoured nation and national treatment clauses), insisting in particular on the express limits of the principle of non-discrimination.
The next panel dealt with recent innovations concerning substantive protections to foreign investments. The first presentation was focused on the definition of protected investments and investors and how States have acted in order to control interpretations developed in practice by arbitral tribunals. The second panellist, with CETA as an example, analysed express derogations provided by treaties and the right to regulate of States. The third panellist then discussed the gradual taking into account of human rights and environmental law in bilateral investment treaties, introducing the practice and discussing innovations in this area. To conclude this panel, the final presentation was on making investors responsible through new obligations under bilateral and multilateral agreements.
The topic of third panel was hypothetical alternatives and complements to arbitration for the protection of foreign investments. The first panellist started by considering former, actual and future projects of regional and international jurisdictions concerning investment. The second presentation dealt with the central question of interpretation in investment arbitration, a question that can be determined before or after the conclusion of treaties. The third panellist discussed the opportunity of going before a national Court, and in particular the case between the nuclear giant Vattenfall and the German State before the Bundesverfassungsgericht. Finally, the last presentation concerned prior attempts to create an appellate mechanism for investment arbitration and the peculiar system enshrined in the CETA was emphasised.
The final panel dealt with the active role of States in investment arbitration proceedings. The first panellist spoke about the issue of third party funding, its control in different jurisdictions and treaties (Singapore, Hong-Kong, CETA) and the powers of a tribunal when confronted by third party funding. The second panellist then discussed the opposite side of third party funding, including financial obstacles to State actions and their financing. The third presentation then considered the new paths opened by the Urbaser v. Argentina case regarding State counterclaims, although the possibility for States to be claimants was denied. To conclude this conference, the last panellist talked about the promotion of transparency in investment arbitration proceedings and the great leaps that have been made over the past 10 years in this matter.
A summary of the conference on the protection of foreign investments will be published in full in « Les Cahiers de l’Arbitrage » (Lextenso Editions).
- Charles-Maurice Mazuy, Aceris Law