Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Is ICSID Losing Its Appeal ... Again?

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Is ICSID Losing Its Appeal ... Again?

Article excerpt

This panel was convened at 3:00 p.m., Thursday, March 24, by its moderator, Andrea Menaker of White & Case LLP, who introduced the panelists: Stanimir A. Alexandrov of Sidley Austin LLP; Andreas F. Lowenfeld of New York University School of Law; and Christoph Schreuer of the University of Vienna.

INTRODUCTORY REMARKS BY ANDREA MENAKER

In today's session we are going to be talking with a very renowned panel about ICSID annulment, so I'll just launch right into it and introduce our panel members. I'm sure each of them is well known to all of you.

Starting at the very end of the table, we have Andreas Lowenfeld who is the Herbert and Rose Rubin Professor of International Law at NYU where he has taught for several decades. He is also the recipient of the Manley Hudson Medal given by ASIL in 2007 and has acted as an arbitrator in numerous investment arbitrations.

Next to him is Stanimir Alexandrov who is a partner at Sidley Austin. He is a co-chair of the firm's international arbitration practice. He practices international arbitration, investment arbitration, as well as WTO dispute resolution. Prior to joining Sidley Austin, he was Vice Minister of Foreign Affairs for Bulgaria and also was Deputy Chief of Mission in Bulgaria's embassy here in Washington, D.C.

To my immediate right is Christoph Schreuer who is currently counsel at Wolf Theiss in Vienna and prior to that was a professor of international law, most recently at the University of Vienna where he taught for many years. Before that, he also taught at the University of Salzburg and at SAIS, right here in the region. Perhaps most well know to you is the fact that Professor Schreuer has written what has become known as really the quintessential book on ICSID arbitration, and that is The ICSID Convention: A Commentary, in which he discusses in great detail all of the articles and rules, the ICSID Convention, and arbitration rules.

Rather than having each of our speakers make prepared remarks, what we thought we would do is have each speaker briefly discuss his views on the recent history of ICSID annulments. Then I will pose a number of questions to each of the panelists, so they will each have an opportunity to comment on those questions.

Of course, we welcome comments and questions from the audience at any time, so you need not wait until the end of the session. If you do want to jump in with a comment, please just raise your hand, and I will call upon you, and you can go to the microphone.

So, without further ado, I think that I will just hand it over to the panelists, so each of them can provide some opening remarks. I'd like to start with Professor Lowenfeld.

REMARKS BY ANDREAS F. LOWENFELD

Maybe I should take advantage of the fact that I was there at the creation, as Dean Acheson said about Bretton Woods, and as many other people have said about other events. How do we get to annulment?

Well, in 1964 the United Nations had spent several years and gotten through this resolution of a permanent sovereignty, which wasn't quite as anti-investment as it sounded. It was kind of a compromise, but the world wanted to start the other way, with a view that if you encourage investment, you may encourage development, and if you rely only on government aid, you never really get development because governments may give money and maybe they can build a dam or an electric power plant, but for industrial development, you need management, technology, marketing, and all that. And you want to at least get rid of the disincentives of, well, this wave of expropriation that had come really with the liberation of the last colonies in the early 1960s, plus the perception that the Soviet Union and its satellites were doing very well. Later, it turns out that wasn't such a good perception, but that was common.

So the world clearly wanted to move in the opposite direction, and arbitration seemed like a good thing, but the New York Convention on Arbitration had not been approved by either the United States or the United Kingdom. …

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