A conference discussion topical subjects in investor state arbitration, including third party funding, the impact of Achmea on the ECT, costs and corruption.
Washington Plaza Hotel, Washington, D.C
1. Investment Arbitration under the Energy Charter Treaty in the Wake of Achmea v. Slovakia: Allowed or Forbidden?
As the 2018 judgement of the Court of Justice of the European Union continues to reverberate throughout the investment treaty and wider international commercial arbitration communities, investors, counsel, arbitrators, governments, and other stakeholders will continue to be challenged to contemplate an appropriate response. This panel will consider two opposing contributions as to where we might, or might not, go from here.
2. Third Party Funding: Can it be Regulated? Should it be Regulated?
Long a hot button topic for critics of the investor-State dispute settlement system, the attack on third party funding shifted to the academe in recent years, in addition to being placed on the agenda for reform of arbitral rules and even contemplated in the negotiation of recent investment treaties. All the while, the business of litigation funding has continued to rapidly evolve, raising fundamental questions about how, when, and/or why to regulate it at all. One author has been tasked with arguing in favour of regulation, the other, against.
3. Corruption After Establishment: Should it Disqualify Otherwise Meritorious Claims?
Corruption has become an increasingly common issue in investor-estate arbitration, having become firmly entrenched as a jurisdictional objection. Its utility as a defence on the merits is much less certain, however, as the international public policy prohibiting wilful participation in corrupt acts meets the international national public policy protecting investment and the general international law law principle of unjust enrichment. Our authors have been asked to stake out opposing positions on whether corruption committed after an investment has already been established should nullify an otherwise meritorious treaty claim.
4. Should Costs Go with the Cause in Investment Treaty Arbitration?
Investment treaty arbitration was a unique, hybrid form of international dispute settlement from the start. With so much of its practice, and most of its practitioners, borrowed from international commercial arbitration, it might have been expected that costs would increasingly be awarded with the cause too. But the argument can be made that investment treaty arbitration is better understood as a form of international administrative law, for which a strict rule of costs following the cause might discourage access to justice. One of our authors has been tasked with making that argument and the other, a response.