GAR Live BITs Lookback: should the US government outsource defence of treaty cases?

GAR Live BITs Lookback: should the US government outsource defence of treaty cases?

30 April 2019

Is it time the US government started outsourcing – even in part – investment dispute defence work? The US, after all, is home to some of the most experienced investment arbitration teams in the world. Or is the country getting it right? Are other governments all too often being gamed by their chosen external advisers? These and other questions were debated at last year’s GAR Live BITs inquisition.


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.

Mark Kantor

Independent Arbitrator

Until he retired from Milbank, Tweed, Hadley & McCloy LLP, Mark Kantor was a partner in the Corporate and Project Finance Groups of the Firm and resident in the Washington, D.C. office. He serves as an arbitrator and mediator in commercial and investment disputes, and as an Adjunct Professor at the Georgetown University Law Center (Recipient, 2006 Fahy Award for Outstanding Adjunct Professor). Mr. Kantor is a member of the World Bank Group Sanctions Board. He is also Editor-in-Chief of the online journal Transnational Dispute Management.


Tariq Baloch

3 Verulam Buildings

Jonathan Blackman

Cleary Gottlieb Steen & Hamilton

Maria Chedid

Arnold & Porter

Mark Cymrot

Baker & Hostetler

Paolo Di Rosa

Arnold & Porter

Alexandra Dosman

Vannin Capital

Jonathan Gimblett

Covington & Burling

Mélida Hodgson

Foley Hoag

Justin Jacinto

Curtis, Mallet-Prevost, Colt & Mosle

Carolyn Lamm

White & Case

Noiana Marigo

Freshfields Bruckhaus Deringer

David Orta

Quinn Emanuel Urquhart & Sullivan

Patrick Pearsall

Jenner & Block

Claudia Salomon

Latham & Watkins

Ashika Singh

Debevoise & Plimpton

Melissa Stear Gorsline

Jones Day

Michael Waibel

University Senior Lecturer; Co-Deputy Director Lauterpacht Centre for International Law, University of Cambridge

Can Yeginsu

4 New Square


9.00: Welcome coffee and registration

9.30: Chairs' opening remarks

Matthew Slater, Cleary Gottlieb Steen & Hamilton
Mark Kantor, Independent Arbitrator

9.45: Session one:
The end-game

What is the end-game where BIT claims are part of a country-wide crisis?

Using Argentina as the starting point, leading names will discuss how BIT claims by private enterprises in the context of country-wide crises fit within a wider resolution of a country’s finances.

Among other things, the panel are expected to discuss:

  • What lessons are there from the end-game in Argentina? What award enforcement tools were used and how successful, or unsuccessful, were they?
  • How do circumstances in Argentina differ from circumstances in other countries currently experiencing crises?
  • The overlap among national courts, arbitral tribunals and regulatory measures to create pressure on a sovereign.
  • Differences in the end-game for claims against sovereigns and claims against state-owned enterprises.
  • Viable defences to claims against sovereigns and claims against state-owned enterprises.
  • Sovereign debt in the context of investment treaty claims.
  • The interrelationship with sovereign to sovereign restructuring and the roles of IMF and World Bank finance.
  • Piercing the corporate veil issues and sovereign immunity enforcement issues, e.g. as is playing out in Crystallex.

Patrick Pearsall, Jenner & Block

Noiana Marigo, Freshfields Bruckhaus Deringer
Alexandra Dosman, Vannin Capital
Justin Jacinto, Curtis, Mallet-Prevost, Colt & Mosle
Michael Waibel, University Senior Lecturer; Co-Deputy Director Lauterpacht Centre for International Law, University of Cambridge

11.00: Coffee break

11.30: Session two: The GAR Live symposium

Our espresso version of the popular Tylney Hall format. Our moderators will consider issues such as:

- What’s going on with NAFTA – both in the US and elsewhere?
- The potential implications of Brexit

Melida Hodgson, Foley Hoag
Mark Cymrot, BakerHostetler

12.45: Networking lunch

14.15: Session three:
Dealing with parallel criminal, civil and administrative proceedings

Drawing on their collective experience, our panel will address:

  • Can arbitrators stop parallel administrative investigations or criminal proceedings through provisional measures?
  • Can parallel criminal or administrative proceedings stop arbitrations?
  • Can decisions or evidence from administrative investigations or criminal proceedings be submitted in an arbitration?
  • The impact of collateral estoppel and similar doctrines

Jonathan Gimblett, Covington & Burling

Can Yeginsu, 4 New Square
Claudia Salomon, Latham & Watkins
Tariq Baloch, 3 Verulam Buildings
Jonathan Blackman, Cleary Gottlieb Steen & Hamilton

15.30: Coffee break

16.00: Session four: The GAR Live Inquisition: Hiring counsel for treaty cases – are governments getting the process right?

This session will replicate a US senate committee hearing with a succession of witnesses being ‘grilled' by a panel of GAR Live inquisitors. The session will focus on current systems for state representation – are they working?

Issues the panel are likely to explore include:

  • How do you develop a procurement process that serves the state interest?
  • Does competitive bidding produce a better substantive result for the state or does a “low bidder” system mean that quality of legal representation suffers?
  • Do the methods currently being used work?
  • Is there an ideal approach, and if so what – between “full inhouse” and “fully outsourced”?
  • How does the government’s process for procuring counsel affect claimants?
  • Can every system be gamed?

Mark Kantor, Independent Arbitrator
Melissa Gorsline, Jones Day
Carolyn Lamm, White & Case


Maria Chedid, Arnold & Porter
Paolo Di Rosa, Arnold & Porter 
David Orta, Quinn Emanuel Urquhart & Sullivan
Ashika Singh, Debevoise & Plimpton

17.15: Chairs' closing remarks

Matthew Slater, Cleary Gottlieb Steen & Hamilton
Mark Kantor, Independent Arbitrator

17.30: Close of conference


Covington & Burling, One CityCenter, 850 Tenth Street, NW, Washington DC, 20001-4946, USA


Private Practitioner
Type Price Until
Super Early


6 April 2018


4 May 2018


17 May 2018


Complimentary In-house/Governmental registration available