On 5 February 2018, about 100 participants attended the 3rd EFILA Annual Conference, entitled Parallel States’ Obligations in Investor-State Arbitration, which took place at Senate House in London.
The first panel dealt with the increasing role and powers of non-disputing third parties and their influence on arbitration proceedings. It was chaired by Yasmin Mohammad (Vannin Capital), and consisted of Alejandro López Ortiz (Mayer Brown), Kostadin Sirleshtov (CMS) and Lise Johnson (Columbia Centre on Sustainable Investment). The panel reflected on the fact that various types of third parties, ranging from non-governmental organisations (NGOs), the European Commission, non-disputing third states and third party funders are more actively engaging in investment treaty disputes, which, in turn, changes the dynamics of proceedings. However the extent to which third party submissions in the form of amicus briefs are really making a difference remained unclear.
The second panel, chaired by Aron Skogman (Mannheimer Swartling) and consisting of Federico Ortino (Kings College London), Christophe Bondy (Cooley) and Monica Moraleda (Kingdom of Spain) focused on investment regulation and arbitration. In particular, they considered how recent treaty practice, such as in the Comprehensive Economic Trade Agreement (CETA) and the Trans-Pacific Partnership (TPP), has expanded states’ regulatory powers. The panel specifically examined Spanish renewable energy cases and the impact of state aid and EU law generally.
After the lunch, the Honourable Judge Charles N. Brower (20 Essex Street Chambers) delivered a powerful keynote speech. He explained why the EU’s proposal for an investment court system will fail both investors and states. He argued that the proposal is essentially the product of fear and fake news propaganda, spread by anti-investor state dispute settlement (ISDS) NGOs, who have insufficient knowledge and expertise regarding investment treaty arbitration. In this context, he pointed to the fact that arbitrators and lawyers shy away from speaking up against NGOs due to fear of losing one’s own reputation. Nonetheless, Judge Brower expressed his hope and expectation that the proposal for an investment court system will fail before the European Court of Justice.
Following this, a distinguished panel chaired by Markus Burianski (White & Case) and consisting of Cherie Blair QC (Omnia Strategy), Anja Havendal-Ipp (Arbitration Institute of the Stockholm Chamber of Commerce (SCC)) and Dirk Pulkowski (Permanent Court of Arbitration (PCA)) commented upon the keynote speech. All agreed that the criticism against investment treaty arbitration has been exaggerated and ignorant of the multiple reforms that have taken place in recent years. At the same time, while the benefits of arbitration were underlined, it was also argued by some that the trend towards more reforms will probably continue.
Marie Stoyanov (Allen & Overy) chaired the last panel on human rights, environment and arbitration. Monique Sasson (Macchi Celere & Gangemi), Stephen Fietta (Fietta) and Iuliana Iancu (Hanotiau & van den Berg) discussed the various forms and instances in which investment arbitration has been interacting with human rights and environmental law. They demonstrated that such interaction is already built in to many investment treaties. Arbitral tribunals are also increasingly open to taking such public policy issues into account.
These high profile panels prompted many interesting questions and an exchange of views. In sum, the conference was a very stimulating event with many thought provoking discussions. We expect that the next EFILA event will be at least as interesting as this one.