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

Recent Trends in International Investment Treaty Law

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

Recent Trends in International Investment Treaty Law

Article excerpt

This panel was convened at 10:45 a.m., Friday, March 25, by its moderator, Nassib G. Ziade of the International Centre for Settlement of Investment Disputes, who introduced the panelists: Rudolf Dolzer of the University of Bonn, Institute of International Law; Donald Francis Donovan of Debevoise & Plimpton LLP; Carolyn B. Lamm of White & Case LLP; and Loretta Malintoppi of Eversheds LLP.


It has become commonplace to preface the discussion of the topic of international investment arbitration by pointing out that it has rapidly gained prominence just in the last two decades. We continue to witness a proliferation of bilateral, regional, and multilateral investment treaties in the field. These have led to an attendant increase in the number of cases submitted to the International Centre for Settlement of Investment Disputes (ICSID)--which remains the premier investment treaty arbitration facility--but also to other arbitration institutions and to ad hoc arbitration.

As a reflection of the global reach of this field, we are also observing a diversification of its users, whether investors or states, not to mention third-party participants. The burgeoning caseload in the field has necessitated an expansion of the pool of arbitration specialists, whether arbitrators, counsel, or experts. As a result of the field's growing sophistication, procedural issues are becoming more complex, a point that will be reflected in the remarks of the speakers today.

The large increase in the number of investment treaty arbitration cases has contributed to a rapid development of international investment law, which is becoming a specialized field in itself. Universities are now offering courses on this topic. Conferences are increasingly featuring panels addressing this topic. If one has any doubts, one may simply consult the programs of the ASIL Annual Meetings from the last several years. In case of further doubts, one may check the number of conferences, panels, and speakers addressing this topic this week in Washington alone.

Today, we will hear presentations on four salient topics which will further contribute to the lively debate taking place, and which will no doubt show that there is harmony and dissonance within this specialized field of international law.

I will not attempt to link today's presentations to each other, except to say that they are all timely and will be presented by prominent experts.

Our first presentation will address the independence and impartiality of investment treaty arbitrators and will analyze the rapid growth in the filing of challenges and disqualification requests. To give but one example, there have been 51 proposals for disqualification of tribunal members filed at ICSID since the registration of its first case in 1972. Of these, 30 requests were filed only in the last four years. In addition to the challenges of arbitrators, a new phenomenon has emerged in recent times, namely the challenge of opposing counsel before arbitration tribunals. This phenomenon is not in itself regulated by express provisions in arbitration rules. One may ask whether the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration contain adequate responses to all questions surrounding challenges in this field.

Our second topic is on provisional measures, which are a common feature in international adjudication and international arbitration, including international investment treaty arbitration. Provisional measures are designed to preserve the respective rights of the parties appearing before a court or a tribunal, pending the final decision of that court or tribunal. In drafting Article 47 of the ICSID Convention, which concerns provisional measures, the drafters were clearly inspired by the corresponding provision in the Statute of the International Court of Justice (ICJ). …

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