I am delighted to kick start the Practical Law Arbitration blog with an interview with Meg Kinnear, who since 2008, has been the Secretary General of the International Centre for Settlement of Investment Disputes (ICSID) at the World Bank. She has recently been re-elected by the Administrative Council for a further term of six years.
Meg was called to the Bar of Ontario in 1984 and the Bar of the District of Columbia in 1982. She received a Bachelor of Arts (B.A.) from Queen’s University in 1978; a Bachelor of Laws (LL.B.) from McGill University in 1981; and a Master of Laws (LL.M.) from the University of Virginia in 1982. She has published numerous articles on international investment law and procedure and is a frequent speaker on these topics.
In part 1 of the interview, Meg talks about her background and role at ICSID. In part 2, she focuses on elements of ICSID procedure and in part 3 considers changes to ICSID arbitration procedure. Finally, in part 4 Meg considers current topical issues in ICSID arbitration, such as the EU proposal for reformed ISDS provisions, transparency rules and third party funding.
Personal background
Can you tell us a bit about yourself?
I was born and raised in Montreal, Canada, and did my legal training at McGill University and the University of Virginia. I am a member of the Bars of the District of Columbia and Ontario. I spent my professional career before ICSID as a lawyer with the government of Canada, first as a litigator at the Department of Justice, then as an Executive Assistant to the Deputy Minister of Justice, and finally as the head of the Trade Law Bureau of Canada at the Department of Foreign Affairs and International Trade.
What made you want to be a lawyer?
I have always been fascinated with the role of government and the way in which laws help order policy initiatives. I also love debating and analysis, so the potential for a career as a litigator in government was the perfect match for those interests. Working as a litigator for the government of Canada gave me a front row seat on a number of administrative, constitutional and rights issues, and was the ideal combination of law and governance. When I moved to Canada’s Trade Law Bureau, I saw another aspect of this intersection on the international economic side. I feel blessed to have had a career that has been interesting every single day.
What made you interested in the world of investment treaty arbitration?
I spent 15 years doing domestic litigation and arbitration, and I loved everything about advocacy, especially appellate advocacy. When I moved to Canada’s Trade Law Bureau in 1999, I joined a group that had traditionally done trade dispute settlement under the WTO, GATT and specific agreements such as the softwood lumber agreements between Canada and the United States. At that time, the first NAFTA Chapter 11 cases were being filed and Canada was developing its in-house team to defend those cases, so I was able to combine my old skills in litigation with my new knowledge about trade and investment. At the same time, I learned new roles, for example supporting treaty negotiations, drafting treaties and advising whether proposed government measures complied with the trade and investment obligations of Canada. I was extremely fortunate to have arrived at this time when the NAFTA investment arbitrations were so new and so much was happening in trade and investment; it was exciting, creative, stressful and challenging all at once.
What prompted you to join ICSID?
In 2008, the World Bank decided that the position of Secretary-General of ICSID should become a stand-alone position. Prior to that, it had been one of the responsibilities of the World Bank’s General Counsel. However, by 2008 it was clear that the complexity, profile and volume of the work merited a stand-alone leader. The position was advertised internationally and seemed like the perfect fit to me given my background in law, arbitration, government and management. I applied for the job and was extremely fortunate to have been elected to the position by ICSID’s Administrative Council. This past year I was re-elected by the Administrative Council for a further term of six years, and I look forward to continuing to fulfil this role.
The role of ICSID
What exactly is ICSID and what does it do?
ICSID is one of the five institutions that make up the World Bank. It is the smallest of these institutions and the only one with a non-financial mandate. It was created by the World Bank member states in 1966 to provide an impartial facility to resolve international investment disputes. At the time, States were unable to agree on substantive global investment standards but it was clear that the presence of a global and independent dispute settlement centre would contribute to promoting private investment and development.
As an organization, ICSID consists of an Administrative Council with one ministerial level representative from each member state and a Secretariat to undertake the cases and related work. ICSID’s primary role is to provide facilities and administer investment arbitration and conciliation. We also do a substantial amount of technical assistance and publishing. In the past 50 years ICSID has become the premier international investment facility, having administered roughly 70% of all known cases under the ICSID Convention, the Additional Facility, the UNCITRAL Rules and ad hoc. We have a staff of 70 people who act as tribunal secretaries, paralegals, administrative assistants and financial officers. We have roughly 210 pending cases and undertake all the logistical work for these cases – everything from setting up case escrow accounts, appointing arbitrators (when requested by the parties), constituting tribunals, receiving written submissions, holding hearings and issuing awards.
ICSID’s secondary role is to assist in the development of international law in relation to foreign investment. This has resulted in a very active publishing program, including the ICSID Review (published three times annually), a comprehensive website and more recently our 50th anniversary text called “Building International Investment Law: The First 50 years of ICSID”. We have also undertaken an increasing amount of training for states, arbitrators, counsel and others interested in this field.
Can you talk us through the day to day operational work of ICSID? How does it function? Is there a “court” similar to the ICC Court?
We are divided into five groups: the institutional group does non-case work such as publishing, membership issues, legal issues related to the Convention, and the like. There are three cases teams, in principle one English, one French and one Spanish (our three official languages), although numerous cases have two languages. The case teams administer cases from institution of a request for arbitration to issuing awards in tribunal and annulment cases. The finance team does all of the business side of the operation including managing case finances, ICSID facilities, human resources, IT, and ICSID’s budget.
What’s a typical day for you?
When I am in Washington my typical day involves back-to-back meetings – typically with staff to address case-specific issues or ICSID initiatives, with arbitrators or counsel who are involved in cases at the centre, or with World Bank management to ensure ICSID has the facilities, IT, budget and human resources needed. I try to come in early so that I can work on longer term projects or strategy while it is quiet and before phones and email start up! I travel about 2-3 weeks every month and on those days I am usually giving speeches, attending conferences, briefing government officials, and meeting people involved in ICSID cases. I love to meet as many people as possible and to get their views, and I always come back from these trips with new perspectives and hundreds of new ideas.
Is your aim to get every country in the world to ratify the ICSID Convention?
I see first-hand that ICSID offers a unique and extremely valuable service to any state that wants to offer international dispute settlement, so I do think it would be ideal to have every country as a member. Today ICSID has 152 ratified members, with another 8 states that have signed the Convention, so we are very close to universal membership!
