Conversations and Crossroads: the 2019 Investment Claims Summer Academy

As we finalise the arrangements for the 2020 Investment Claims Summer Academy, Editor-in-Chief Professor Frédéric G. Sourgens looks back at last year’s event…

 

The 2019 Investment Claims Summer Academy, convened by Oxford University Press, was a testament to the enduring strength of a dialogue between the arena, in which disputes are fought, and the (ivory) tower, from which academics observe these disputes. Set against the background of the Saïd Business School, the Summer Academy contemplated the fundamental changes and potentials for retrenchment faced by international investment law. A question arose as to whether the investment arbitration infrastructure would outlast the current onslaught on international law dispute resolution mechanisms as a whole. As the Summer Academy concluded, there was both significant hope for the role investment arbitration could play as part of a larger international law framework to grapple with growing global problems, and trepidation.

 

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The Summer Academy fittingly opened with a session on investment arbitration reform. The first session, entitled, “ISDS Reform – Exit, Remodel, or Much Ado About Nothing” was ably led by Professor Chiara Giorgetti of the University of Richmond School of Law. The session focused in particular on the current status of discussions in UNCITRAL Working Group III. The group discussion focused first on where the working group anticipated reform efforts to focus next. The Academy attendees were reasonably optimistic that reform efforts would not end in a wholesale exit from the investment arbitration framework.  It anticipated that the process would end with significant remodeling proposals. The group discussed the challenges facing investment arbitration in light of these reform efforts and linked the reform efforts to a broader political backlash against international law, trade, and globalization.

 

The second session brought the delegates firmly back from the policy space to the real-world arena of the practice of investment arbitration: it looked at the use of artificial intelligence in arbitrator selection. The session was ably led by David Baron from Crowell & Moring and Dr. Jose Antonio Rivas from Vannin. The session outlined current algorithms available to assist counsel in arbitrator selection. These predictive algorithms seek to predict the result of arbitrations on the basis of set parameters of key issues in dispute in a case solely by looking at the composition of the arbitral tribunal. The session engaged the technological avenues available to bring computing approaches to the quantitative limited realm of investment arbitration – and thus noted that many big data approaches would be helpful given the small sample size of investment decisions. Isabel Yang, from Arbilex, helped take the group through some of the latest approaches and technology available. The session ended in a spirited debate over whether computer algorithms would be as accurate in making predictions about arbitration outcomes on the basis of qualitative data as experienced counsel would be on the basis of qualitative experience. The session suggested that while this question could not yet be answered definitively, it opened new avenues to reduce costs particularly for first time participants in the arbitration selection process and therefore could meaningfully reduce barriers to entry.

 

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The Summer Academy next looked to two book discussions to provide scholarly perspective on the state of investment law as whole. The first of these book discussions introduced Emily Sipiorski’s Good Faith in International Investment Arbitration. Investment Claims Editor in Chief Freddy Sourgens served as discussant for the book. The discussion highlighted the many ways in which good faith defines the decisions made by investment arbitration tribunals and sought to establish the key rationales underlying good faith in international investment law. An interview with Emily Sipiorski can be viewed here.

 

The second book discussion introduced the second edition of Borzu Sabahi, Noah Rubins, and Don Wallace’s Investor-State Arbitration. The chair of the Investment Claims Advisory Board and former Editor in Chief of Investment Claims Ian Laird discussed the book with Borzu Sabahi. Their discussion brought out fascinating developments in investment law by highlighting the changes between the first and second edition. An interview with Borzu Sabahi can be viewed here. 

 

The Summer Academy closed its first day of business by examining the role that human rights law can play in investment arbitration. The session entitled “Human Rights and Investment Arbitration” was expertly led by Professor Diane Desierto of the Notre Dame Keough School of Global Affairs. It asked if progress has been made in responding to human rights impacts of investment, particularly within the evolving framework of investor-State dispute settlement paradigms and investment law and policy-making. The session highlighted recent developments such as the SCC emergency arbitration decision in Munshi v. Mongolia that made the connection visible. The discussion provided a first introduction to the Hague Rules on Business and Human Rights Arbitration. The session ended with an energetic debate about the Hague Rules and more generally whether and how human rights arbitration claims could provide meaningful improvements to international dispute resolution mechanisms.

 

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The second day of the Summer Academy opened with a hot button topic for international law in general and applied it to investment arbitration – Climate Change. Professor Freddy Sourgens of Washburn University School of Law and Editor in Chief of Investment Claims led the session entitled “Climate Change and Investment Arbitration.” The session considered two core questions. The first of these questions was whether climate change mitigation policies could give rise to successful investment arbitration claims. The delegates were more mixed in their response to this question than when the delegates last confronted this topic at an earlier academy shortly after conclusion of the Paris Agreement, indicating a greater skepticism towards the durability of the Paris framework in the face of populist backlash against aggressive climate policies. The second question addressed whether claims brought by renewable energy companies seeking to enforce climate-related commitments could serve as vehicles for private attorneys general. There was strong disagreement on this point between the delegates.

 

The substantive part of the second day ended with a panel on denunciation of the ICSID Convention. The session was masterfully led by Dr. Martins Paparinskis of University College London. It contrasted the differences between public international law approaches to denunciation evidenced by International Court of Justice jurisprudence with some discordant outcomes in investor-state arbitrations. It then asked what the consequence of denunciation should be – and when those consequences would bar claims by foreign investors. The delegates were unanimous that if the investor had consented to arbitrate prior to the denunciation of the relevant treaty, the investor would have a right to proceed to arbitration and would be unaffected by such a denunciation. Other than that, the delegates did not agree on any one approach to resolve the consequence of denunciation of bilateral investment treaties or the ICSID Convention on investor rights to arbitrate claims.  

 

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Frédéric G. Sourgens is the Director of the Oil and Gas Law Center and Professor of Law at Washburn University School of Law. He serves as Editor-in-Chief for Oxford University Press's online Investment Claims platform and co-chairs the Investment Claims Summer Academy convened by Oxford University Press.

 

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The participants in the Summer Academy were, in alphabetical order: Dapo Akande, Merel Alstein, Danae Azaria, David Baron, Christina Beharry, Sujit Choudhry, David Collins, Diane Desierto, Isuru Devendra, Chiara Giorgetti, Katie Hooper, Iona Jacob, Lise Johnson, Mark Kantor, Ian Laird, John Laird, Silvia Marchili, Cameron Miles, Michael Nolan, Martins Paparinskis, Antonio Parra, José Antonio Rivas, Borzu Sabahi, Emily Sipiorski, Freddy Sourgens, Todd Weiler, Sebastian Wuschka, Isabel Yang, and Agnieszka Zarówna.

 

Special thanks to Susan Franck, Borzu Sabahi, Emily Sipiorski, and Freddy Sourgens for joining us after the event to record interviews about their latest titles.