Welcoming Irene Ten Cate

It's our great pleasure to welcome Irene M. Ten Cate (leftt) as an IntLawGrrls contributor.
Irene is a Visiting Assistant Professor at Marquette University Law School in Milwaukee, Wisconsin, where she teaches in the areas of civil procedure and business associations.
Interested in the interplay between the functions of adjudication and the process of judging, Irene focuses her research on how the presence or absence of adjudicative lawmaking affects adjudication in international commercial and investment arbitration.
Irene earned her J.D. from Columbia Law School in New York and her LL.B. degree from the University of Amsterdam in the Netherlands. She spent two years as an associate-in-law at Columbia and more than six years as a litigation and international dispute resolution associate in the New York office of Skadden, Arps, Slate, Meagher & Flom. She also interned with the Secretariat of the International Court of Arbitration of the International Chamber of Commerce in Paris and worked as a corporate associate in the Brussels office of Cleary Gottlieb Steen & Hamilton.
In her introductory post below, Irene surveys studies demonstrating the paucity of women among arbitrators appointed in arbitrations administered by the International Centre for Settlement of Investment Disputes.
Irene dedicates her post to Aletta Jacobs, portrayed in the sculpture below right, about which Irene writes:

'I frequently passed by this statue during my high school years in the university town of Groningen. Aletta Jacobs (1854-1929) started the world’s first birth control clinic, played a key role in the Dutch and international suffrage movements, and was actively involved in women’s peace organizations. But in the Netherlands, she is best known for being the first woman to graduate from a Dutch university. She needed special permission from Prime Minister Johan Rudolph Thorbecke to enroll in medical school and, a few years later, to sit for exams. This dedication is also an expression of support for all the courageous girls who are fighting the battle for equal access to education today.'

Today Jacobs joins other inspiring women on IntLawGrrls' foremothers page.
Heartfelt welcome!

Binders Full of Women . . . Arbitrators?

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

The title of this post, as readers based in the United States surely know, refers to a statement from candidate Mitt Romney in a presidential debate. In response to a question from the audience, Romney gave the following account of his quest to identify women candidates for cabinet positions after he was elected governor of Massachusetts:

'[A]ll the applicants seemed to be men. And I – and I went to my staff, and I said, “How come all the people for these jobs are – are all men.” They said, “Well, these are the people that have the qualifications.” And I said, “Well, gosh, can’t we – can’t we find some – some women that are also qualified?”
'And – and so we – we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet. I went to a number of women’s groups and said, “Can you help us find folks,” and they brought us whole binders full of women.'

Amidst the hilarity that has since ensued (I recommend an Internet search for “binders full of women,” as well as a glance at this IntLawGrrls post), let’s pause to consider some data from the glamorous world of international arbitration.
Attorneys Mark Baker and Lucy Greenwood of Fulbright & Jaworski collected information about arbitrator appointments for their article, "Getting a Better Balance on International Arbitration Tribunals," which will be published in Arbitration International by the end of this year. Based on information provided by two major international arbitration institutions, among other sources, they estimate that women represent between 4 and 6.5% of recent appointments in international commercial cases.
A similar picture emerges in investment treaty arbitration:
Baker and Greenwood find that women account for 5.63% of arbitrators appointed in arbitrations administered by the International Centre for Settlement of Investment Disputes, or ICSID, and concluded between January 13, 1972, and January 18, 2012.
Earlier this year, a publication entitled "The (lack of) women arbitrators in investment treaty arbitration," by Osgoode Hall Law Professor Gus Van Harten, placed the number of women arbitrators in all known investment treaty cases until May 2010 at 6.5%.
To get a sense of recent trends, I reviewed appointments in cases registered with ICSID between January 1, 2008, and October 19, 2012, with the following result:

While hardly reason to uncork the Champagne, a 9.4% appointment rate is seemingly a substantial improvement over the 5.65% to 6.5% range based on longer-term data.
Yet as Van Harten points out, the increase disproportionately reflects the extraordinary success of Geneva Law Professor Gabrielle Kaufmann-Kohler (right) and Sorbonne Law Professor Brigitte Stern (left) in obtaining appointments, and doesn’t signify a broader trend. My review of appointments made in cases registered with ICSID in the past five years confirms Van Harten’s finding that Kaufmann-Kohler and Stern (prior IntLawGrrls posts) account for approximately 75% of all women arbitrator appointments in investment treaty cases:

One might expect to encounter more women in annulment committees, whose members are appointed by the Chairman of the Administrative Counsel of ICSID. After all, doesn’t ICSID have greater incentives than parties to consider gender balance?
Perhaps not. Women account for only 3.49% of annulment committee members appointed since 2008:

These numbers should cause disquiet in the international arbitration community. I’m sure all of us can instantly call to mind several female practitioners and scholars – in addition to Kaufmann-Kohler and Stern – who have established strong reputations. Women appear as counsel in high-profile arbitrations, win promotions in top law firms, publish articles and present at conferences. Why don’t they get appointed as arbitrators?

Write On! Call for Papers on International Arbitration

(Write On! is an occasional item about notable calls for papers)

The Institute for Transnational Arbitration, a division of the Center for American and International Law, is calling for papers to be presented at its second annual Winter Forum, which will take place in Miami, Florida, on January 24-25, 2013. Possible paper topics include: 
► Emerging issues of substantive law in international commercial arbitration or international investment law;
► Consideration of procedural issues, including issues related to arbitrator selection and challenge, evidentiary considerations, preliminary measures, concurrent proceedings, and enforcement and review;
► The relationship between international commercial arbitration and investment law, as well as between these two pillars and other branches of law, such as intellectual property and environmental law;
► The recent jurisprudence of national courts related to international arbitration, either domestic or comparative, and the implications for basic concepts of jurisdiction, arbitrator competence and independence;
► Innovative research methodologies for the exploration and consideration of international arbitration and transnational dispute resolution;

Center for American & International Law (ITA HQ,  Dallas)

► The interactions among arbitrators, scholars, practitioners, government officials and civil society groups active in international arbitration; and
► The consideration of international arbitration’s commercial impact, including implications of cost, the net value of arbitration and the opportunities to build sustainable dispute resolution into international business and investment.
Works-in-progress from both scholars and practitioners, whether established or emerging, are invited. Proposals must be submitted by September 1, 2012.  Details here.

Do Plain Packaging Laws Invite IP Piracy?

(credit)

On the heels of Australia’s plain tobacco packaging law (previous post), the United Kingdom is considering similar measures.
The anti-counterfeiting section of the International Chamber of Commerce has responded to a call for public comments. This anti-counterfeiting group, called Business Action to Stop Counterfeiting and Piracy, argues that plain packaging would invite more counterfeit goods into the market and so would undermine brand owners’ ability to fight back against intellectual property pirates. Signaling possible future legal action by intellectual property owners, the group also argues that

'removing one industry’s ability to use its IP rights is government expropriation of private property and opens the door to extend this violation to other industries and other brand owners.'

In her new book, From Goods to a Good Life: Intellectual Property and Global Justice , about which she contributed an IntLawGrrls post, California-Davis Law Professor Madhavi Sunder argues that intellectual property should be harnessed to expand human capabilities and the ability of individuals to pursue the good life.
Considered within that framework, perhaps undercutting legal protection for health-endangering products is kind of the point.
Regardless, however, there will undoubtedly be legal battles as governments seek to reset the boundaries of protected rights. No published investor-state arbitration award has addressed expropriation of intellectual property, and it will be interesting to watch the jurisprudence on this issue develop under the spotlight of such a controversial public health issue.

Aussie Business Rallies for Investment Arbitration

In 2011, the Australian government of Prime Minister Julia Gillard announced a new policy on international investment treaties: its future agreements would not permit investor-state arbitration.
The government has since concluded the Australia-Malaysia Free Trade Agreement, which provides only for dispute resolution between the two states, leaving investors to head to national courts or seek diplomatic protection for their disputes. Australia also has included a reservation to the arbitration provisions of the draft Trans-Pacific Partnership Agreement. (previous post) However, the new position has been a sticking point in attempts to conclude trade agreements with Korea and Japan, as both countries preferred to provide for investor-state arbitration in a neutral third state. 
Australia’s anti-arbitration policy is thought to be in part a reaction to finding itself threatened for the first time with a claim by a foreign investor.
The government released the policy statement shortly after publishing a bill that would require smokeable tobacco products to be sold in greenish brown packs with graphic health warnings and no branding (photo below right, credit).
Philip Morris’s Asian arm threatened to sue if the bill became law. It ultimately made good on that threat, filing an arbitration claim for expropriation of its trademarks and investment mere hours after the Tobacco Plain Packaging Act was passed in November.
It is not terribly surprising that Australia would take an unfavorable position toward investor-state arbitration, since it imports more capital than it exports. It therefore has, in theory, a high probability of being on the receiving end of an investment claim relative to the expected benefits to its nationals of being able to bring claims against other states.
The Australian Chamber of Commerce and Industry, other business groups, and trade law experts yesterday announced a public campaign advocating for a return to Australia’s former policy of including investor-state arbitration in its treaties.
In July, the group had sent a letter to the Prime Minister contesting what it called the government's

'flawed approach which reduces security for Australian firms seeking to invest internationally.'

The letter argued that, at the same time, the new policy "provides no reduction in Australian Government exposure to liability due to the pre-existing exposure from previously negotiated investment treaties.”
In reality, the policy change seems unlikely to have much impact on either inbound our outbound Australian investment.

Conflicts in EU Foreign Investment Policy

A newly published 2010 award on jurisdiction in an investor-state dispute highlights uncertainties created by the European Union’s assumption from member states of authority over international investment policy, a matter about which I posted last month.
The decision in Oostergal and Laurentius v. Slovak Republic (April 23, 2012) (previous post) was rendered under the bilateral investment treaty, or BIT, between the Netherlands and the Slovak Republic and under the Arbitration Rules of UNCITRAL, the UN Commission on International Trade Law. 
Slovakia argued that its accession to the European Union in 2004 terminated the BIT. To decide the issue, the investment tribunal looked to Article 59 of the Vienna Convention on the Law of Treaties, which provides that a treaty shall be terminated if the parties conclude a later treaty “relating to the same subject matter” and either: 

'(a) it appears from the later treaty or is otherwise established that the parties intended that the matter should be governed by that treaty; or
'(b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two treaties are not capable of being applied at the same time.'

The tribunal found that none of the elements of Article 59 were satisfied: 
► The Treaty Establishing the European Economic Community (the EC Treaty) did not cover the same subject matter as the BIT.  
The tribunal observed that the “dominant view expressed in scholarly writings” is that it “two treaties can be considered to relate to the ‘same subject matter’ only if the overall objective of these treaties is identical and they share a degree of general comparability.” It determined that that the EC Treaty and the BIT had different objectives: the former aims to create a common market among European Union member states, while the latter grants specific protections to foreign investments. The tribunal emphasized that the EC Treaty provides no protection that is equivalent to the BIT’s recourse to investor-state arbitration, “one of, if not the most important feature of the BIT regime.” 
► The parties had shown no intention to supersede the BIT.  
No provision in either treaty indicated such intent. The tribunal pointed to a provision in the BIT stating that it shall not be construed to require either contracting state to accord advantages to nationals of the other contracting state similar to those granted to nationals of a third state as a result of any future customs or economic unions. It read that provision as demonstrating an intent that the BIT would remain force regardless of future economic unions. 
► The provisions of the two treaties were compatible. 
The tribunal was not persuaded by Slovakia’s argument that the protections for Dutch investors in the BIT were incompatible with the free movement of capital and violated the principle of nondiscrimination in the EC Treaty. 
The decision raises a number of intriguing issues, of which I will point out two: 

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'[B]oth decisions focus on the applicable standard for challenges to arbitrators, and specifically on whether an "appearance of bias" standard is required. In both cases, the Tribunals, after a fairly detailed analysis of the parties' submissions and prior ICSID and other international decisions, clearly rejected the requirement of an "appearance of bias" standard, instead opting for a less stringent standard. Once the "appearance of bias" standard was disregarded, however, the contours of the applicable standard adopted remain unclear.'

 -- IntLawGrrls contributor Chiara Giorgetti (left), who's just joined the law faculty at Virginia's University of Richmond, in an ASIL Insight that reviews 2 decisions in which a party's challenge to a member of an arbitral panel was rejected (by the panel's remaining members, a fact that, Chiara notes, "may create uneasy situations for arbitrators and may need to be re-examined"). The 1st decision, issued last November in a dispute between Mauritius and Britain, concerned Sir Christopher Greenwood, a judge on the International Court of Justice; the 2d decision, issued in February this dispute between Venezuela and ConocoPhillips Co., before ICSID, the International Centre for Settlment of Investment Disputes, appears to have been taken offline. It concerned Canadian lawyer-arbitrator-diplomat L. Yves Fortier.

The Role of State-State Investment Arbitration

Arbitration news site IA Reporter reports (subscription wall) on an expert opinion by Professor Michael Reisman (pictured left; credit) of Yale Law School. The opinion concerns a novel issue in the investment arbitration realm, one with potentially far-reaching implications.
In addition to investor-state arbitration, many bilateral investment treaties provide for arbitration between the two contracting states, but this mechanism has rarely been used. Indeed, the very innovation of investor-state arbitration is that it permits investors themselves to sue states rather than relying on their governments to espouse claims on their behalf or to settle their disputes diplomatically. This raises the question of the purpose and proper reach of claims brought by states under these treaties.
Ecuador has initiated arbitration under the following state-state mechanism in the U.S.-Ecuador investment treaty: 

'Any dispute between the Parties concerning the interpretation or application of the Treaty which is not resolved through consultations or other diplomatic channels, shall be submitted, upon the request of either Party, to an arbitral tribunal for binding decision in accordance with the applicable rules of international law.'

Similar clauses are found in many modern investment treaties. 
Professor Reisman’s opinion, submitted by the United States, argues for a very limited effect of the decisions of tribunals in state-state investment treaty arbitrations. In his view, because the very purpose of the investor-state dispute resolution is to displace state espousal of investor claims and to give investors a neutral forum of adjudication, investor-state tribunals have exclusive competence to determine the meaning of treaty protections. States should not be able to restrict a treaty’s meaning post hoc through arbitration. Therefore, the decisions of state-state tribunals are not binding on investor-state tribunals.  In fact, he believes that state claims should not be permitted except concerning issues such as a state’s refusal to enforce an arbitral award or a state’s denouncement of a treaty. 

As IA Reporter points out, other scholars have advocated greater use by states of avenues other than renegotiation to steer the interpretation of their treaties. Professor Anthea Roberts (pictured right; credit) (prior IntLawGrrls posts) of the London School of Economics, for example, has argued that states should use interpretive statements for this purpose. She observes that the Vienna Convention on the Law of Treaties views such statements as primary sources of treaty interpretation. 
Professor Reisman, and others, worry that states may abuse the state-state mechanism in ways that thwart investor expectations and potentially disrupt investor-state arbitrations. It is conceivable that a state could initiate such a claim during an ongoing arbitration with an investor in an attempt to circumvent the authority of the appointed tribunal.  The Ecuador-United States investment treaty arbitration will thus be an interesting one to watch.

Write On! Transnational arbitration conference

(Write On! is an occasional item about notable calls for papers)

In my role as Chairman of the Academic Council of the Institute for Transnational Arbitration, I'm pleased to share with IntLawGrrls readers a call for papers to be presented at the ITA's 2d Annual Winter Forum, to be held January 24 and 25, 2013, at the Biltmore Hotel (below) in Miami, Florida. (photo credit)
The first half of the Winter Forum will showcase two works in progress selected pursuant to a call for papers, encompassing presentations by authors, commentary by internationally recognized academics and practitioners, and interactive discussion among all participants.
After a conversation over lunch with renowned authority Gary Born, chair of the International Arbitration Practice Group of WilmerHale, the Winter Forum will feature a candid discussion under the Chatham House Rule of topical questions raised by participants (Tylney-Hall style), before concluding with a select year-in-review of noteworthy events in international arbitration.
We are now inviting submission of proposals on international arbitration. All proposals must be submitted via e-mail to ITAWinterForum2013@gmail.com.
Deadline is September 1, 2012.
Any questions should be directed to either of the ITA Winter Forum 2013 Co-Chairs, Florida-based attorney Joseph Matthews (Joseph@colson.com) or Pacific McGeorge Law Professor Jarrod Wong (jwong@pacific.edu).
Full details here.

Coordinating EU Foreign Investment Policy

As part of its effort to make European Union institutions more effective in their areas of competence, the Lisbon Treaty (prior posts) gave the EU exclusive authority over foreign direct investment. The change, which took effect in 2009, has raised many questions and much consternation about the fate of EU member states’ 1200 bilateral investment treaties. In the years since, the EU has elaborated European investment policy and proposed regulations for managing the transition to centralized authority for investment agreements.
To date, the EU has entered into one investment treaty containing a dispute resolution mechanism, and it is negotiating others, which will enable foreign investors to bring claims against the EU for the actions of member states. Additionally, the EU’s exclusive competence in investment matters means that it now bears international responsibility for member states’ violations of even those treaties to which the Union is not a party. Those developments raise two important questions:
► In arbitrations challenging member states’ actions, who should be the named respondent, the EU or the member state?
► When a member state is held liable for violating an investment treaty, should the EU or the member state pay?
The European Commission recently released a proposed regulation addressing those and other issues.
 While affirming that the EU should in principle act as the respondent in any such arbitration, the Commission proposes a “pragmatic solution” to “allow for the smooth conduct of arbitration.” The regulation would permit member states to appear as respondents to defend their own actions, except in certain circumstances where EU actions or interests are particularly at stake.
Similarly, the regulation’s principle for the payment of awards is that responsibility should follow from the origin of the challenged treatment. If the actions giving rise to a successful claim are exclusively those of a member state, the state must pay the arbitral award. If the challenged actions originate in EU institutions or were required by EU law, the EU must pay.
The regulation answers some questions about the future of Europe’s investment treaties, but many unresolved issues remain. For example, the EU is not a party to the Convention of the International Centre for Settlement of Investment Disputes. As a regional economic organization, the EU cannot become a party unless the ICSID Convention is amended—no small task for a treaty with 158 signatories.

Go On! New U.S. Model Investment Treaty

(Go On! is an occasional item on symposia and other events of interest) 
The Vale Columbia Center on Sustainable International Investment and the newly launched Center for International Commercial and Investment Arbitration (CICIA) will host an "off-the-record" discussion of the 2012 US Model Bilateral Investment Treaty (BIT) on July 16. 
The new Model BIT was released by the U.S. government in April of this year after a three-year review process of the previous model, which had been adopted in 2004. The VCC and CICIA are hosting this event to discuss the 2012 Model BIT and how it differs from the 2004 model, and to explore the implications of those differences for investors, governments, and other stakeholders that might be affected by ongoing and future treaty negotiations. Confirmed panelists are: 
►Daniel Bahar, Director of Investment Affairs, Office of the US Trade Representative; 
►Michael Tracton, Senior Negotiator for Investment Treaties, US State Department; and
►Thea Lee, Deputy Chief of Staff, AFL-CIO; co-chair of Subcommittee on Investment of the State Department’s Advisory Committee on International Economic Policy
The discussion will be moderated by Anthea Roberts, a Visiting Professor at Columbia Law School. The discussion is the first event to be hosted by the CICIA, which was established this Spring to further the teaching and study of international arbitration. 
The event will take place on July 16th from 12:00 to 1:30 PM at Columbia Law School, 435 W. 116th Street, in room 103. Lunch will be served. For questions, contact Lise Johnson at ljj2107@columbia.edu.  RSVP here. 

Peek at Proposed Pan-Pacific Protection Pact

A draft of a groundbreaking trade and investment treaty under negotiation was leaked last week, revealing a text with significantly greater express affirmation of states’ discretion to regulate to address public welfare and environmental concerns than previous generations of investment treaties. If concluded, the agreement will create the Trans-Pacific Partnership, the largest free trade area in the world, linking 11 nations on four continents flanking the planet’s vastest ocean.
The leak of the investment protection chapter of the draft agreement inevitably sparked protests from anti-globalization groups. Those groups, and other critics of the investment protection regime, overstate (to varying degrees) the scope and rigidity of traditional investment treaty standards, construing them as incompatible with environmental law, human rights protection, and public welfare regulation. In reality, even without express acknowledgements such as those in the draft and recent investment treaties, traditional foreign investor protections give states ample regulatory leeway. Even so, the draft treaty takes the further step of expressly confirming that investment should be protected and encouraged with due regard to other public interest considerations. It also addresses concerns that have been raised about the transparency and openness of investor-state dispute resolution. A few examples:
► The prohibition on requiring foreign investors to meet performance requirements does not preclude a state from imposing measures to secure compliance with domestic environmental laws, to protect life or health of people or animals, or to conserve exhaustible natural resources.
► The treaty’s regulation (not prohibition) of expropriation may not be construed to prevent a state from taking measures to ensure investments conform to environmental, health, safety, and labor concerns. In addition, “[t]he Parties recognize that it is inappropriate to encourage investment by relaxing health safety or environmental measures.”
► To enhance the openness of investor-state arbitrations, extensive provision is made for amicus curiae submissions.
► To improve transparency, the treaty imposes detailed requirements on the parties and the tribunal in investment arbitrations to publicize all aspects of the proceedings, including not only awards (which already are almost universally published), but also the parties’ written submissions and hearings.


(Photo credit: Office of the United States Trade Representative)

Go On! Collective Redress in the Cross-Border Context

(Go On! is an occasional item on symposia and other events of interest)
I am currently serving as the Henry G. Schermers Fellow at the Hague Institute for the Internationalisation of Law (HiiL) and the Netherlands Institute of Advanced Studies (NIAS).  On June 20-22, as part of that fellowship, I will convene a symposium and works in progress conference focused on the theme "Collective Redress in the Cross-Border Context: Arbitration, Litigation and Beyond." 
The event aims to explore the various means that can be used to resolve collective legal injuries that arise across national borders. The types of dispute resolution mechanisms to be discussed range from class and collective arbitration, mass arbitration and mass claims processes, class and collective litigation, and large-scale settlement and mediation. The workshop will bring together practitioners, academics, and representatives of non-governmental organisations, all of whom have an interest and expertise in public and private resolution of collective redress in the international realm. 

Confirmed speakers for the symposium include:
►Jan Willem Bitter, Simmons & Simmons LLP/Netherlands Arbitration Institute (The Netherlands) 
►Christian Borris, Freshfields/German Arbitration Institute (Germany) 
►Laura Carballo Piñeiro, University of Santiago de Compostela (Spain) 
►Christopher R. Drahozal, University of Kansas (USA) 
►Gregory A. Litt, Skadden, Arps, Slate, Meagher & Flom LLP (USA) 
►Daan Lunsingh Scheurleer, NautaDutihl (The Netherlands) 
►Gerard Meijer, Nauta Dutihl/Erasmus University Rotterdam/PRIME Finance (The Netherlands) 
►Rachel Mulheron, University of London, Queen Mary (UK) 
►Victoria Orlowski, ICC International Court of Arbitration (France) 
►Geneviève Saumier, McGill University (Canada) 
►Garth Schofield, Permanent Court of Arbitration (The Netherlands) 
►Yours truly, S.I. Strong, Henry G. Schermers Fellow, HIIL/NIAS, University of Missouri (USA),
The three-day event will be held June 20-22, 2012, at the NIAS site in Wassenaar, twenty minutes outside of the Hague. The event is free to the public, but registration is required. For more information, including the full programme for both the Schermers symposium and works in progress event, see the HiiL website. Questions may also be directed to me via e-mail at strongsi@missouri.edu.

Victory for Slovak Republic in Investment Dispute

The Slovak Republic has defeated an investment treaty claim brought by Dutch investors, according to the text of an arbitral award rendered in April but only released publicly today.
The tribunal in Oostergetal and Laurentius v. Slovak Republic rejected all of the investors' claims under the Netherlands-Slovak Republic bilateral investment treaty and ordered them to pay the costs of the arbitration (equivalent to court costs in domestic litigation) as well as to bear € 2 million of the Slovak Republic's costs of defending against the suit.
The tribunal found that the claimants had not proven their claim that the Slovak Republic breached the treaty's obligations to treat them fairly and equitably, to afford them full protection and security, and to refrain from expropriating their investments without adequate compensation.  The investors challenged the state's pursuit of bankruptcy proceedings to collect back taxes.
Siding with the state, the tribunal criticized the claimants' presentation of their case, observing that they had failed to clearly articulate their factual allegations and legal arguments.  Such poor advocacy will be familiar to experienced international arbitration practitioners who have been in the frustrating position of deciphering the arguments of hopelessly inexperienced opposing counsel.  Presumably lack of experience explains the poor showing in Oostergetal; the identity of the claimants' counsel has been redacted from the award.

Write On! Collective redress across borders

(Write On! is an occasional item about notable calls for papers)

Organizers of a workshop entitled Collective Redress in the Cross-Border Context: Arbitration, Litigation, Settlement and Beyond seek proposals for the works in progress portion of the conference, to be held June 20-22, 2012, in Wassenaar, the Netherlands. Convener is the Hague Institute for the Internationalisation of Law, along with the Netherlands Institute for Advanced Study in the Humanities and Social Sciences.
Here's the theme statement we received via e-mail:

'Large-scale international legal injuries are becoming increasingly prevalent in today’s globalized economy, whether they arise in the context of consumer, commercial, contract, tort or securities law, and countries are struggling to find appropriate means of providing collective redress, particularly in the cross-border context.'
...
'All works-in-progress submissions should explore one or more of the various means of resolving collective injuries, including class and collective arbitration, mass arbitration and mass claims processes, class and collective litigation, and large-scale settlement and mediation, preferably in a cross-border context.'

Send abstracts of no more than 500 words to Missouri Law Professor Stacie I. Strong (right), the 2012 Henry G. Schermers Fellow, at strongsi@missouri.edu.
Deadline is May 1, 2012; details here.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'The publication of awards is a relative novelty in international commercial arbitration. With the exception of awards rendered under the International Convention on the Settlement of Investment Disputes (“ICSID”), international arbitration is usually confidential. This is precisely one of the reasons why parties traditionally choose arbitration over regular court proceedings, and it remains to be seen if parties will agree to the publication of awards.'

-- Leiden Law Professor Eric De Brabandere, in an ASIL Insight outlining the latest mechanism for pacific settlement of disputes. The Insight's title says it all: "P.R.I.M.E. Finance: The Role and Function of the New Arbitral Institution for the Settlement of Financial Disputes in The Hague." (photo credit)

Kudos to Sadie

Delighted to provide news about IntLawGrrl Sadie Blanchard (left), who today contributes a post about developments in international investment law.
When last she posted with us, on the Extraordinary Chambers in the Courts of Cambodia, Sadie was still a student at Yale Law School. These days, she is an associate in the International Arbitration practice at King & Spalding in Paris, France, and continues to write in the areas of international adjudication and public international law. And we're pleased to announce that this coming May, she'll begin serving as private international arbitration law clerk in The Hague to Charles N. Brower, an arbitrator and legal expert who's served as a Judge on the Iran-U.S. Claims Tribunal since 1983.
Heartfelt congratulations, and welcome back!

Go On! ASIL side event, "Women in Arbitration"

(Go On! is an occasional item on symposia and other events of interest)

I am organizing the 4th annual "Women in Arbitration" reception as a side event at next week's American Society of International Law Annual Meeting in Washington, D.C. (Prior IntLawGrrls posts on the meeting available here.)
The cash-bar reception will take place on Thursday, March 29, from 6:30 to 8 p.m. in the Longworth Room at the Fairmont Hotel, site of the ASIL Annual Meeting. It will be an opportunity to meet other women involved in arbitration in a relaxed setting and network.
Cosponsors are ASIL, ArbitralWomen, and ABA WIN, the Women's Interest Network of the American Bar Association.
For more information contact me, Chiara Giorgetti, at cgiorgetti@washdc.whitecase.com.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

It acknowledged that the ICSID framework is silent as to mass proceedings, but found that it would run counter to the purpose of the Italy-Argentina [bilateral investment treaty] and to the spirit of ICSID to interpret such silence as a prohibition on mass proceedings. ...
The tribunal’s findings can be contrasted with the approach the U.S. Supreme Court has taken to this issue in the commercial arbitration context.

-- Professor Karen Halvorsen Cross (right) of Chicago's John Marshall Law School, in an ASIL Insight entitled "Investment Arbitration Panel Upholds Jurisdiction to Hear Mass Bondholder Claims against Argentina." She details the "remarkable jurisdictional findings" in the August 2011 decision in Abaclat, a matter heard by a 3-member arbitral tribunal of ICSID, the International Centre for the Settlement of Investment Disputes. The reasoning of the 2 panel members in Abaclat differed, Cross explained, from that of the 5-Justice majority in Stolt-Nielsen SA v. AnimalFeeds Int’l Corp. (U.S. 2010), "that 'the differences between bilateral and class-action arbitration are too great for arbitrators to presume . . . that the parties’ mere silence on the issue . . . constitutes consent to resolve their disputes in class proceedings.'" Dissenting from his colleagues' contrary conclusion was arbitrator Georges Abi-Saab; he subsequently resigned from the Abaclat tribunal. The effects of the August decision, on the matter at hand as well as on other arbitrations raising similar issues of small claims and large sovereign debts, thus remain to be seen.

Guest blogger: Catherine Rogers

It's IntLawGrrls' great pleasure to welcome Catherine Rogers (right) as today's guest blogger.
A Professor of Law at the Dickinson School of Law, Pennsylvania State University, where she teaches International Arbitration and Professional Responsibility, though she's on leave and based in London this academic year.
Her scholarship focuses on the convergence of the public and private in international adjudication, and on the reconceptualization of the attorney as a global actor. Publications include a forthcoming volume, Ethics in International Arbitration. Among her many professional and service activities, she's an Associate Reporter for the American Law Institute’s new Restatement of the Law (Third) of International Commercial Arbitration, a member of the American Society of International Law Task Force on Global Legal Ethics, a member of the International Bar Association’s Task Force on Ethics in International Arbitration, and an associate editor for Transnational Dispute Management Journal.
Catherine earned her B.A. from the University of California, Berkeley, her J.D. from the University of California, Hastings College of the Law, and her LL.M. from Yale. Before entering academia, she practiced international litigation and arbitration in New York, Hong Kong, and San Francisco.
In her guest post below, Catherine discusses a new initiative, the Jerusalem Arbitration Center, a joint venture among the International Chamber of Commerce of Israel, the Chamber's International Secretariat in Paris, and its new member, the International Chamber of Commerce of Palestine. The post grows out of her work with the last-named group to develop various initiatives aimed at building capacity in the Palestinian legal profession and legal education system in anticipation of the launching of the Center.
Catherine dedicates her contribution as follows:

'To the un-famous Palestinians and Israelis who have worked, and continue to work, in their daily lives to build a peaceful future.'

Heartfelt welcome!