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Master Class: Investment Arbitration

Monday, 19 September, 2016 - 13:30 to Thursday, 22 September, 2016 - 17:30
Campus: Brussels Humanities, Sciences & Engineering campus
Vrije Universiteit Brussel, Pleinlaan 5, 1050 Brussel
Meeting room 'Bruges', Level -1
Brussels Diplomatic Academy
+32 2 614 81 01
bda@vub.ac.be
www.brusselsdiplomaticacademy.eu

The law on foreign investment protection is one of the fastest developing and intellectually challenging branches of international law with high practical relevance. Investment arbitration is predicted to be a major factor in the development of the global economic system. The number of investment disputes before international arbitral tribunals has increased significantly over the last decades and reflects the notable preferences of the international business community for resolving international investment disputes. Acquaintance with the legal regime for investment arbitration and case law has now become indispensable for those involved in investments, economic diplomacy and international dispute resolution.

In the course of the seminar, the speakers will examine the fundamental notions relevant to investment arbitration and critically review a number of major cases. This seminar is especially relevant to government officials, diplomats, private investors and executives who are involved in investment decision-making processes.

AUDIENCE 

The master class is aimed at:

  • diplomats
  • government officials responsible for negotiations of investment treaties and involved in representing a state in dispute resolution proceedings
  • attorneys specializing in dispute resolution
  • civil servants in state’s investment policies
  • investors in all kind of businesses
  • other

 

ADDED VALUE 

The four days seminar is designed to provide its participants with a concentrated educational experience in the areas of law on foreign investment protection and investment arbitration. It is specifically aimed to provide practical help to those who wishes to grasp the fundamentals of investment arbitration. The course also offers an explanation of legal rules and relevant guidelines as well as checklists and practice examples.

The course’s unique feature is its international scope. Participants from a broad range of backgrounds will participate in a dynamic learning experience, where the multifaceted aspects of arbitration are considered from a range of comparative perspectives.

CONTENTS

19/09 Day 1: Introduction to Investor-State Arbitration

Dr. Nikos Lavranos 

  • The origins and sources of investor-state arbitration. The role of diplomatic protection in investment disputes. Drawbacks and advantages of diplomatic protection
  • The purpose and main content of an investment treaty. The rights protected by investment treaties and exceptions to protections accorded by investment treaties
  • Main principles of interpretation and application of investment treaties
  • Typical dispute settlement provisions and  process of filing a claim under investment treaties: who can file and where such dispute can be filed
  • Arbitration institutions and regimes: ICSID and non-ICSID investment arbitration
  • The newly proposed investment court system (ICS) in EU investment treaties

 

20/09 Day 2: Protection Standards, Jurisdiction & Admissibility

Mr. Johan Billiet 

  • Standard of Fair and equitable treatment. What are the specific applications of the standard?
  • Full protection and security
  • The umbrella clause. Meaning and origin. Effective and restrictive application
  • Access to justice, fair procedure, and denial of justice
  • A “home” state and “host” state of an investor: whether an investor may arbitrate against his home state in investor-state arbitration?
  • Investment contracts in a nutshell: types, applicable law, stabilization clauses, and renegotiation/adaptation
  • The options available to a national investor to protect his property against the adverse measures of the home state. Do foreign investors have a greater degree of protection than nationals? National treatment standard and Most-favoured-nation treatment
  • What constitutes an investment in investor-state arbitration: what are the criteria, if any, to distinguish the investment from non-investment? Whether such criteria differ between ICSID and non-ICSID cases? Can a sale of goods contract be considered an investment?
  • The pillars of arbitral tribunal’s jurisdiction in ICSID cases. How do they differ in non-ICSID cases?
  • The difference between jurisdiction and admissibility. What claims are inadmissible in investor-state arbitration?

 

21/09 Day 3: The Procedural time-line, Recognition and Enforcement of the Award

Mr. Gordon McAllister 

  • A “cooling off period” in investor-state arbitration, its purpose and duration. How is it triggered?
  • Exhaustion of local remedies in investor-state arbitration. A “fork-in-the-road” clause
  • A “temporality” requirement under investment protection treaties
  • The notion of an investor in investor-state arbitration. Are there any limitations on investors? Can a natural person be an investor? Whether a legal entity established according to the laws of the host state but owned by a foreign investor can be the claimant in investor-state arbitration?
  • Main features of the annulment process under the ICSID Convention. What is the difference between annulment and appeal
  • Main features of the annulment process in non-ICSID proceedings. The importance of the place of arbitration in a non-ICSID case
  • The schemes for enforcement of arbitral awards under the ICSID Convention and the New York Convention on the Recognition and Enforcement of Arbitral Awards
  • Sovereign immunity in enforcement proceedings
  • A relief available in investor-state arbitration: restitution and satisfaction; damages; compensation for expropriation; interests

 

22/09 Day 4: ISDS in the ECT and its application through ECT cases

Mr. Graham Coop 

  • ECT relevant provisions for ISDS
  • Choice of arbitration rules - ICSID, UNCITRAL, or SCC
  • Exceptions to unconditional consent under Article 26(3)(a) of the ECT
  • Case application - Yukos shareholders v. Russian Federation
  • The ECT and EU law
  • The right to regulate and the ECT

  

FACULTY    

Dr. Nikos Lavranos is the Head of Legal Affairs at Global Investment Protection and is a highly experienced negotiator and policy advisor on Bilateral Investment Treaties (BITs) and expert in European law and public international law. Nikos Lavranos has an outstanding track record in the field of investment protection. Until August 2014 he was the Senior Trade Policy Advisor responsible for Bilateral Investment Treaties (BITs) and investment issues in the Dutch Foreign Ministry and previously the Ministry of Economic Affairs. In this capacity he was the Chief Negotiator for the Netherlands and Representative of the Netherlands in the Trade Policy Committee (TPC) of the EU and in the Investment Committee (IC) of the OECD. Recently, Nikos has also been appointed Secretary-General of the European Federation for Investment Law and Arbitration (EFILA) established in Brussels. 

Johan Billiet is a founding partner at Billiet & Co, Brussels. He is also the founder and President of the Association for International Arbitration (AIA IVZW). Johan is frequently appointed to act as an arbitrator in all types of national and international arbitration procedures. Today he also teaches alternative dispute resolution, investment arbitration and comparative arbitration at the Vrije Universiteit Brussel (VUB) and at the European Mediation Training for Practitioners of Justice (EMTPJ) as well as at other ADR training providers. 

Gordon McAllister is a Solicitor-Advocate in the International Dispute Resolution Group of the law firm Crowell & Moring. He is based in London, where his practice involves representing clients in commercial disputes in all levels of the English Courts, with a particular focus on competition recovery cases. He also frequently represents clients in complex commercial arbitration, including in claims against states. He has experience with the rules of all major international arbitral institutions. In addition, Gordon has represented international investors in arbitration under the auspices of ICSID, and has experience working on ICSID annulment. 

Graham Coop is qualified as a barrister and solicitor in New Zealand and as a solicitor in England and Wales, and is a partner at Volterra Fietta. He advises and represents companies, governments and international organizations on international dispute resolution and public international law, with a particular focus on the energy, natural resources and infrastructure sectors, together with environmental, banking and defense issues. He is recognized globally as one of the world’s leading experts on international energy law, the Energy Charter Treaty and international investment arbitration. He has appeared as counsel, advocate and expert before a wide range of international courts and tribunals, including the International Court of Justice, ICSID, the PCA and the ICC. He is an Honorary Associate of the Graduate School of Natural Resources Law, Policy & Management of the University of Dundee’s Centre for Energy, Petroleum and Mineral Law and Policy. He is an honorary member of the Investment Treaty Forum of the British Institute of International and Comparative Law.

  

LEARNING OBJECTIVES

By the end of the course, the participants should be able to:

  • Understand the legal framework of international arbitration law relating to foreign investments and the major rules on interpretation of investment treaties.
  • Understand the main standards of protection in international investment agreements and major jurisdictional objections; be able to explain main notions in investment arbitration such as investor and investment.
  • Comprehend the main features of annulment proceedings and the schemes for enforcement of arbitral awards under the ICSID Convention and the New York Convention.
  • Become familiar with the most important case law in investment arbitration field and learn how to search efficiently for relevant jurisprudence.

The working language of the course is English.

  

COURSE MATERIAL

Before the start of the lecture, a syllabus compiled by the lecturers will be handed over to the participants. For those who wish to enjoy some preparatory readings, the following texts are recommended:

  • Billiet, International Investment Arbitration, A Practical Handbook, 2016
  • Dolzer and Schreuer, Principles of International Investment Law, 2012
  • Redfern and Hunter, Law and Practice of International Commercial Arbitration, 2009, Chapter 8
  • Lew, Mistelis, and Kröll, Comparative International Arbitration, 2003, Chapter 28
  • Newcombe and Paradell, Law and Practice of Investment Treaties, 2009

  

CERTIFICATION
Participants to the course will receive a certificate of attendance from the Brussels Diplomatic Academy of the Vrije Universiteit Brussel.

 

LOCATION
Vrije Universiteit Brussel, Pleinlaan 5, 1050 Brussels Room Bruges, level -1.

It is building number 5 on the campus plan, which can be downloaded at http://www.vub.ac.be/english/infoabout/campuses/etterbeek.html.

A description on how to find the campus is available on http://www.vub.ac.be/english/infoabout/campuses/index.html#etterbeek.

Free parking facilities are available on the campus on the other side of the building. A bar code gives access to the campus via campus entry 13 (see the red arrows on the campus plan). The scanner for the bar code is situated under the intercom. 
A few days before the start of the event, participants will receive a bar code giving access to the parking.

 

METHOD OF PAYMENT AND CANCELLATION

Fees:
The master class fee is 1.850 EUR. 
Members of the Association for International Arbitration IVZW benefit from a discount of 50%.
VAT Settlement: exempted from VAT: Art 44 § 2, 4° of the VAT code.

The above prices include the registration fee and hand-out material relating to the course on ‘Investment Arbitration’, as well as the coffee breaks and networking reception for the duration of the event. 
The accommodation form is not included in the registration fees.

Flemish companies can make use of the “KMO-portefeuille”: www.beaweb.be (Admission number BDA for “Training”: DV.O211124).

Payment:
Attendees are requested to pay by bank transfer only, upon receipt of invoice.
Confirmation of registration and practical information will be sent only after receipt of payment.

Cancellations:
In case of cancellation, a substitution between members of the same company is still possible at any time.

 

REGISTRATION

To register for this master class, please fill in the online registration form available on www.brusselsdiplomaticacademy.be.

For more information please contact us at bda@vub.ac.be.

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