Coverage

GAR Live lookback: mega-treaties – what are the implications?

19 May 2017

Showing how much can change in the blink of a US presidential election, the liveliest panel at last year’s GAR Live BITs discussed “mega-treaties” - CETA, TTIP, etc. What lessons could be drawn from their content, both substance and process, and what would their effect be more generally? Would they release a bow-wave to wash over any number of pre-existing treaties?

Chairs

Jean Kalicki

Independent Arbitrator

Jean Kalicki is a full-time independent arbitrator based in New York and Washington, DC, specializing in investor-State, international and complex commercial disputes. Until April 1, 2016, she was a Partner at Arnold & Porter LLP, serving as counsel in a wide range of high-stakes international disputes.

Over more than 25 years, she has conducted arbitrations involving six continents, across a wide range of industries and disputed issues, addressing issues of public international law and the laws of dozens of different countries.

Matthew Slater

Cleary Gottlieb Steen & Hamilton

Matthew D. Slater’s practice focuses on international investment-treaty and commercial arbitration.

In his international arbitration and litigation practice, Matt often represents foreign sovereign governments. He also regularly represents clients in related international litigation and in a diverse range of matters in U.S. courts, including government regulatory and enforcement actions, constitutional law, commercial and securities law, and product liability litigation.

Matt is also active in the firm’s pro bono practice, including pending litigation on behalf of a class of homeless people who have been denied the minimum wage for their work for evictions companies.

Keynote Speaker

Donald Donovan

Debevoise & Plimpton

Mr. Donovan is Co-Chair of Debevoise’s International Disputes Group and serves as counsel in international disputes before international courts, international arbitration tribunals, and courts in the United States. Based on surveys of others in the field, Chambers Global 2016 recently identified him as one of the fourteen leading international arbitration practitioners and five leading public international law practitioners in the world. 

Mr. Donovan serves as President of the International Council for Commercial Arbitration(ICCA), the leading global organization of international arbitrators and arbitration practitioners, and he recently completed a term as President of the American Society of International Law (ASIL).

Speakers

Catherine Amirfar

Counselor on International Law to the Legal Adviser, US Department of State

Nigel Blackaby

Freshfields Bruckhaus Deringer

Gabriel Bottini

Adjunct Professor of Public International Law, University of Buenos Aires and Arbitrator and adviser on issues of international law

Christophe Bondy

Volterra Fietta

John Fellas

Hughes Hubbard & Reed

Mélida Hodgson

Foley Hoag

Gaela Gehring Flores

Arnold & Porter

Mark Kantor

Independent Arbitrator

Andrea Menaker

White & Case

Sophie Nappert

3 Verulam Buildings

Timothy Nelson

Skadden, Arps, Slate, Meagher & Flom

David Orta

Quinn Emanuel Urquhart & Sullivan

Patrick Pearsall

Chief of Investment Arbitration, US Department of State

Jennifer Permesly

Chaffetz Lindsey

Ted Posner

Weil, Gotshal & Manges

Natalie Reid

Debevoise & Plimpton

Margrete Stevens

King & Spalding

CPD points

The conference has been accredited with 6.5 CPD hours from the SRA.

Programme

8.30: Welcome coffee and registration

9.00: Chairs’ welcome

Jean Kalicki, Independent Arbitrator
Matthew Slater, Cleary Gottlieb Steen & Hamilton

9.10: Session one: Year in review

The panel members will pick the key themes, for them, from 2015/early 2016, and will introduce each with a provocative take on the development in question. This will be followed by roundtable style discussion. Topics that the panel are likely to discuss include:

  • Case developments: which recent decisions will have an impact?
  • Arbitrator challenges: are they increasing? Why and is that problematic or healthy?
  • Mass claims: does consolidation sometimes make sense?
  • More financial sector claims: how are they different from infrastructure/resources disputes? Is the system ready for them?
  • Annulment: which way is the pendulum swinging?

Moderator:
Matthew Slater, Cleary Gottlieb Steen & Hamilton

Panel:
Catherine Amirfar, Counselor on International Law to the Legal Adviser, US Department of State
Andrea Menaker, White & Case
Jennifer Permesly, Chaffetz Lindsey
Natalie Reid, Debevoise & Plimpton 

10.30: Coffee break

11.00: Session two: The GAR Live symposium

Our espresso version of Tylney Hall, themed around investment disputes. There will be segments on legal standards, damages and recent annulment decisions, among other things.

Moderators:
John Fellas, Hughes Hubbard & Reed 
Gaela Gehring Flores, Arnold & Porter 

12.30: Networking lunch

13.30: Lunchtime speaker: Investor-State Arbitration in 2016: Three Challenges

Donald Donovan, Debevoise & Plimpton

14.00: Session three: Mega-treaties – what are the implications?

CETA, TTIP, TTP: 2015 saw the signing of a new type of treaty. The “mega-treaty” - so called because of the number of signatories, and the range of things they cover.

But how do they change things when it comes to investor-state disputes? Because while the drafters have been clear within the four corners of the texts (too clear?) how the new treaties drop in to the landscape of other treaties is less understood. Will their landing create a shockwave that spreads outwards and changes other treaties? Or …not?

In this session, the panel will discuss exactly that: the impact of mega-treaties on the wider investor state dispute landscape.

Questions the panel are expected to debate in detail include:

  • The level of protection. Has the pendulum swung too far, because states fear (unfounded) challenges? Do meritorious claims still have a prospect of success?
  • Backward looking? Did the drafters focus too much on past problems (eg challenges to new regulations by tobacco makers), and miss an opportunity to look to tomorrow? What issues were left on the cutting room floor because they seemed too problematic to forge consensus in the here and now?
  • An era of treaty shopping? What happens to any parallel BITs? Can they/will they be terminated? How swiftly? Is it possible these treaties herald a confusing period in which investors have a range of treaty options to choose from, each with different rules and standards?
  • Effect on the MFN debate. These treaties seek to limit the use of MFN clauses to borrow mechanisms from other BITs. Having stated that preference, can these contracting parties argue for a similar interpretation of MFN in other treaties they’ve signed (older BITs). Regarding older BITs, are there any elements from the new treaties that investors might seek to import to those, using MFN clauses?

Moderator:
Jean Kalicki, Independent Arbitrator

Panel:
Christophe Bondy, Volterra Fietta
Mélida Hodgson, Foley Hoag
Timothy Nelson, Skadden, Arps, Slate, Meagher & Flom
Ted Posner, Weil, Gotshal & Manges

15.30: Coffee break

16.00: Session four: The GAR Live debate

Motion: “This house believes it’s time to consider some permanent structures – eg standing bodies, fixed arbitrator pools, or appeal mechanisms - to bring order to the ad hoc system of resolving investor state disputes”.

Moderator: 
Mark Kantor, Independent Arbitrator 

Judges:
Donald Donovan, Debevoise & Plimpton
Patrick Pearsall, Chief of Investment Arbitration, US Department of State
Margrete Stevens, King & Spalding

Debaters:
Nigel Blackaby, Freshfields Bruckhaus Deringer
Gabriel Bottini, Adjunct Professor of Public International Law, University of Buenos Aires and Arbitrator and adviser on issues of international law
Sophie Nappert, 3 Verulam Buildings
David Orta, Quinn Emanuel Urquhart & Sullivan

17.30: Chairs’ closing remarks

Jean Kalicki, Independent Arbitrator
Matthew Slater, Cleary Gottlieb Steen & Hamilton

17.45 onwards: All delegates are invited to attend a cocktail reception kindly hosted by Cleary Gottlieb Steen & Hamilton

Venue

Cleary Gottlieb Steen & Hamilton, 2000 Pennsylvania Avenue, Washington, DC, 20006-1801, USA

Testimonials

  • "My first conference. I really enjoyed it!" Christo Pirinsky, Cornerstone Research

  • "I thought the debate was great, and enjoyed the whole conference. I liked that it was more 'intimate' than a lot of other conferences"

Ticket prices

Registration is unavailable.