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Investment Arbitration Strategy: Pragmatic Moves and Manoeuvres

Last week, Members of 20 Essex Street co-convened a seminar with Dentons and the BIICL Investment Treaty Forum, addressing strategy in investment arbitration, with a focus on procedural manoeuvres available to respondent states – including applications for summary dismissal, security for costs, disclosure of third-party funding arrangements, and potential for settlement offers.

The seminar was attended by over 120 practitioners and academics. It was chaired by Sir Daniel Bethlehem QC, who has extensive experience as arbitrator (both presiding and party- appointed) in a range of investor-State arbitrations under the framework of the PCA, ICSID, NAFTA, ECT and DRCAFTA.

Dr Kate Parlett, a specialist in international arbitration and public international law, spoke on applications for summary dismissal under Rule 41(5) of the ICSID Arbitration Rules. Reviewing the practice under Rule 41(5), she argued that it is providing an effective filter for unmeritorious cases, and that it is not being invoked by respondent states routinely or abusively.

Belinda McRae, who has acted as counsel in arbitrations across a range of sectors, spoke on applications for security for costs. She argued that security for costs could be a powerful strategic tool in an appropriate case, potentially for claimants as well as respondent states. She identified several trends in the case law, including that the tribunal’s approach to cost-shifting will have an critical impact on an applicant’s prospects of success.

Penelope Nevill, who specialises in international and domestic litigation and advisory work in the field of public international law, including investment arbitration, spoke on the strategic use of settlement offers to achieve better outcomes for states and investors, and the need for states to have systems in place before disputes arise to make better use of “cooling off” periods and settlement offers. She suggested that parties to investment treaty disputes should consider making “without prejudice except as to costs” settlement offers and specific provisions for their use at the early procedural stages of a case.

Further information on the event can be found here: http://globalarbitrationreview.com/article/1076439/procedural-manoeuvres-in-investment-arbitration. In addition, the presentations are available to download on the BIICL website: http://www.biicl.org/eventpaper/218

 

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