{"id":6290,"date":"2013-03-19T22:04:56","date_gmt":"2013-03-20T02:04:56","guid":{"rendered":"http:\/\/www.journals.law.harvard.edu\/ilj\/?p=6290"},"modified":"2016-07-07T09:54:08","modified_gmt":"2016-07-07T13:54:08","slug":"hilj-symposium","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/ilj\/2013\/03\/hilj-symposium\/","title":{"rendered":"HILJ Symposium"},"content":{"rendered":"

More information is available about the panelists at: https:\/\/journals.law.harvard.edu\/ilj\/symposium\/about\/panelists\/<\/a><\/i><\/p>\n

\u201cThe Design of the Investment Arbitration System: Consistency and Precedent\u201d addressed current design flaws in the investment arbitration system. Panelists focused on the consistency of judgments and enforcement, and potential fixes to the system.<\/p>\n

The first speaker, Prof. Pieter Bekker, explored the roles of various participants in the arbitration tribunal and how to ensure that the regime continues to meet its constituents\u2019 expectations. Citing an essay by the panel\u2019s moderator, Prof. Jeswald Salacuse, that was published in a recent book<\/a>, Prof. Bekker noted that challenges to the regime may foil states\u2019 expectations and therefore undermine the regime. But \u201cit is the regime\u2019s users that constitute the greatest threat,\u201d Prof. Bekker said, and he went on to map the responsibilities of various users.<\/p>\n

Parties must appoint knowledgeable and impartial arbitrators, and, when arbitral institutions make appointments, they should choose arbitrators who do not have a reputation for preferring common or civil law. Arbitrators themselves should pay more attention to the formal sources of international law, including Article 38 of the Statute of the International Court of Justice and Article 31 of the Vienna Convention on the Law of Treaties. These are both pillars of the public international legal structure, but rarely cited in arbitral opinions. Counsel, finally, should be mindful of transnational ethical obligations imposed by their bar. In summary, Prof. Bekker suggested that there was \u201croom for improvement\u201d in the way that constituents approach the \u201cintricacies and sensitivities inherent in the hybrid and developing regime of investment treaty arbitration.\u201d<\/p>\n

The next speaker, Caroline Richard, noted that, while the vast majority of investment awards are fully paid and settled, investor-state arbitration presents unique enforcement risks. States have immunities not available to individuals or companies, which can make the enforcement of awards against State assets more difficult, particularly when (i) the State in question has few commercial assets outside its borders (by design or by circumstance), and (ii) the prospect of enforcing the award before the State\u2019s own courts is unappealing or unrealistic.<\/p>\n

She further noted that in those exceptional cases where States have failed to comply with ICSID awards \u2013 notably, the case of Argentina \u2013 investors have resorted to using the political leverage of their home states, such as lobbying for trade sanctions, to pressure States into complying with awards. But this development puts politics back into a regime that had been designed to de-politicize investor-state disputes, raising the possibility of political fallout and leaving investors at the mercy of their home states.<\/p>\n

Another panelist, Jeremy Sharpe, discussed trends in recent BITs. \u00a0Many modern BITs clarify that investor protection cannot come at the expense of other important values, such as protecting public health and the environment.\u00a0 These BITs often define the substantive protections much more precisely, and some tie certain important protections, such as fair and equitable treatment, to customary international law.\u00a0 Many new BITs also define more precisely how claims may be brought and presented, offering detailed provisions on consent to arbitration, consolidation of claims, the conduct of proceedings, and so forth.\u00a0 The arbitration process, for its part, has tended toward more transparency, with more participation by non-disputing treaty parties and acceptance of amicus <\/i>briefs, for example.<\/p>\n

Harvard Law School\u2019s own Professor Mark Wu\u2014filling in on short notice for a couple of speakers who were absent because of the day\u2019s snowstorm\u2014expressed skepticism that the design flaws in the international arbitral system will be resolved. He identified two broad categories of inconsistency problems affecting the investment arbitration process. First, the arbitration process does not include a process to ensure consistent rulings on specific points of law. Second, arbitration does not seem to treat all legal actors equally, at least to constituents of the system\u2014states, in particular, perceive their treatment as disparate. Noting that solutions to both problems have been proposed and debated for decades, but that the realpolitik<\/i> of powerful states with vested interests preclude any significant design fix, Professor Wu predicted that these inconsistencies are here to stay, and are unlikely to lead to the replacement of the current investment arbitration system.<\/p>\n

Finally, Professor Salacuse, the panel\u2019s moderator, asked the panelists whether investment arbitration processes should make greater use of alternative dispute resolution (ADR), given its success and prominence in the United States. Ms. Richard noted that while investors often prefer alternative dispute resolution methods such as mediation, states do not. They find that settlement is politically costly and they prefer to obtain the political cover that comes from being bound by arbitrators\u2019 decisions.<\/p>\n","protected":false},"excerpt":{"rendered":"

More information is available about the panelists at: https:\/\/journals.law.harvard.edu\/ilj\/symposium\/about\/panelists\/ \u201cThe Design of the Investment Arbitration System: Consistency and Precedent\u201d addressed 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