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Investment Treaty Forum

Twenty Ninth ITF Public Conference

Treaty Law Issues in International Investment Law

Friday, 20 October 2017

The British Academy, 10-11 Carlton House Terrace, London SW1 5AH

Delegate Pack

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Twenty Ninth ITF Public Conference | Treaty Law Issues in International Investment Law Delegate Pack

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CONTENTS

CONFERENCE OVERVIEW .................................................................................................. 1

PRACTICAL INFORMATION ................................................................................................ 1

AGENDA ........................................................................................................................... 2

SPEAKER BIOGRAPHIES ...................................................................................................... 4

INVESTMENT TREATY FORUM ........................................................................................... 12

NOTES ............................................................................................................................ 14


1

CONFERENCE OVERVIEW

Questions of applicability, interpretation and succession of treaties are decisive for resolution of

many investor-state disputes. Although States can be bound by treaties under international law,

investors are not parties to treaties but still have rights and obligations under international

investment law.

Complex issues of treaty law may arise at the stage of entering into effect and application of

unratified investment treaties, for example related to the impact of unratified treaties on customary

international law and provisional application of unratified treaties, such as the Energy Charter

Treaty.

When applying and interpreting international treaties, tribunals also deal with issues of application

of investment treaties in the context of territorial changes and armed conflicts. They also rely on the

Vienna Convention on the Law of the Treaties and engage other extraneous legal rules and actors

for treaty interpretation.

On 20 October 2017 leading arbitrators, practitioners and academics, drawn primarily from ITF

members will gather in London to discuss the interplay between law of treaties and international

investment law at the Twenty Ninth ITF Public Conference.

PRACTICAL INFORMATION

Venue

The British Academy, 10-11 Carlton House Terrace, London SW1Y 5AH

Nearest Underground stations

Charing Cross (Cockspur Street exit) – 6 minute walk to venue

Piccadilly Circus (Lower Regent Street exit) – 7 minute walk to venue

Wi-Fi access

Username: 10-11cht

Password: hospitality


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AGENDA

8:30-9:00 | Registration with tea/coffee

9:00-9:15 | Welcome and introduction

Professor Yarik Kryvoi, Investment Treaty Forum, British Institute of International and Comparative Law

9:15-10:00 | Keynote address

Professor Campbell McLachlan QC, Victoria University of Wellington Law School, New Zealand

10:00-11:30 | Panel 1: Entering into Effect and Application of Unratified Investment Treaties

Chair: Maurice Mendelson QC, Blackstone Chambers, United Kingdom

Davinia Aziz, Attorney-General’s Chambers/National University of Singapore, Singapore

Graham Coop, Volterra Fietta, United Kingdom

Professor Emmanuel Gaillard, Shearman & Sterling, France

11:30-12:00 | Tea/coffee break

12:00-13:30 | Panel 2: Application and interpretation of international treaties

Chair: Sir Frank Berman KCMG QC, Essex Court Chambers, United Kingdom

Romesh Weeramantry, Clifford Chance, Hong Kong

David Gaukrodger, OECD, France

Professor Tomoko Ishikawa, Nagoya University, Japan

13:30-14:30 | Lunch


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14:30-16:00 | Panel 3: Termination, withdrawal, succession of investment treaties

Chair: Paula Hodges QC, Herbert Smith Freehills, United Kingdom

Professor Nicolas Angelet, Liedekerke Wolters Waelbroeck Kirkpatrick, Belgium

David Goldberg, White & Case, United Kingdom

Professor Yarik Kryvoi, British Institute of International and Comparative Law, United Kingdom

16:00-16:30 | Closing remarks

Audley Sheppard QC, Clifford Chance and ITF Advisory Board, United Kingdom

This programme is subject to change.


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SPEAKER BIOGRAPHIES

Professor Campbell McLachlan QC

Victoria University of Wellington Law School (New Zealand)

Keynote Speaker

Campbell McLachlan QC is Professor of Law at Victoria University of

Wellington and an Associate Member of Bankside Chambers (Auckland &

Singapore) & Essex Court Chambers (London). He is author (with Weiniger &

Shore) of International Investment Arbitration: Substantive Principles (2nd

edition, Oxford UP, 2017). He is a Specialist Editor of Dicey, Morris & Collins on the Conflict of Laws (15th

edn 2012) and Joint Editor-in-Chief of ICSID Review–Foreign Investment Law Journal.

In 2015, he was elected to the Institut de Droit International and is Rapporteur of its 18th Commission on

Equality of Parties before International Investment Tribunals. He is a member of the ICSID Panel of

Arbitrators, serving as President or member of a number of international arbitral tribunals under the auspices

of ICSID, the PCA and the ICC. He holds an LL B (Hons) degree from Victoria University of Wellington, a PhD

from the University of London and the Diploma cum laude of The Hague Academy of International Law.

Professor Nicolas Angelet

Liedekerke Wolters Waelbroeck Kirkpatrick (Belgium)

Nicolas Angelet is professor of international law in the Université Libre de

Bruxelles (ULB), a partner with the Belgian law firm Liedekerke, and an associate

tenant of Doughty Street Chambers.

Nicolas’ areas of expertise cover all aspects of public international law, including

investment law and investor-state dispute settlement, immunities, the law and

governance of international organisations, international law against corruption, human rights, UN and

unilateral sanctions, territorial regimes and the law of armed conflicts. He is a member of the ICSID panel of

conciliators (appointed by Belgium) and of the ICSID panel of arbitrators (appointed by Burundi).

Nicolas has served as counsel on issues of international law to governments, international organisations,

corporations and individuals, before domestic courts in various countries, as well as in international

proceedings, including ICSID, PCA, ICJ, the UN Human Rights Committee, subsidiary organs of the UN

Security Council and the European Court of Human Rights.


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Davinia Aziz

Attorney-General's Chambers/National University of Singapore (Singapore)

Davinia is Senior State Counsel in the International Affairs Division of the

Attorney-General’s Chambers. At the AGC, Davinia provides legal services to

Singapore Government agencies on the full spectrum of public international

law issues. She has particular practice interests in the law of the sea and

maritime boundaries, international dispute settlement, and the legal work of

the United Nations. At NUS, Davinia teaches a course on international

organizations. She has also published on this topic in the International Organizations Law Review (Brill)

and the Asian Journal of International Law (Cambridge University Press).

Davinia holds law degrees from the New York University School of Law, where she was a Hauser Global

Scholar, the University of Oxford, and the National University of Singapore.

Sir Frank Berman KCMG QC

Essex Court Chambers (UK)

Sir Franklin (Frank) Berman joined HM Diplomatic Service in 1965 and was the

Legal Adviser to the Foreign & Commonwealth Office from 1991-99. For the

past 17 years he has been in practice in Essex Court Chambers specializing in

international arbitration and advisory work in international law. He is Visiting

Professor of International Law at Oxford and the University of Cape Town.

His 50-year career in international law and diplomacy has spanned a wide and varied field, including

settlement of disputes; the law of treaties; State responsibility; diplomatic and State immunity; maritime

delimitation; the law of the Continental shelf; outer space and nuclear energy; the law of international

organisations; the UN Security Council; the laws of war and neutrality; international criminal tribunals; and

numerous other areas.

Sir Frank has served as Judge ad hoc on the International Court of Justice in the Case concerning Certain

Property (Liechtenstein v. Germany) and was appointed by the Lord Chief Justice as the Legal Member of the

Court of Arbitration in the Kishenganga dispute between Pakistan and India under the Indus Waters Treaty.

He successfully represented Cambodia before the International Court in the Case concerning the Temple of

Préah Vihear (Interpretation).

He was appointed by the British Government in 2004 to the list of Arbitrators under the ICSID Convention,

and is currently sitting or has recently sat in five ICSID arbitrations as Chairman and seven as Party-

appointed Arbitrator (both claimant and host State), and in five ICSID annulment proceedings, as well as in

arbitrations under the ICC, PCA, Stockholm Arbitration Institute and LCIA (sole arbitrator), and ad hoc.


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He is the former Chairman of the BIICL Board of Trustees, and also the former chair of the Diplomatic

Service Appeal Board, and the Appeals Boards of the WEU and IOPCF. In 2001 he was appointed jointly by

the Governments of the USA and Austria to be the Chairman of the Claims Committee of the General

Settlement Fund for the Compensation of Victims of Nazi Persecution, a position he still holds. In 2006 he

was awarded the Grand Decoration of Honour in Gold with Star of the Republic of Austria, and in 2014 the

Grand Cross of the Royal Cambodian Order.

Since 2010 he has been a Member of the Permanent Court of Arbitration.

Graham Coop

Volterra Fietta (UK)

Graham is qualified as a barrister and solicitor in New Zealand and as a solicitor

in England and Wales. He advises and represents companies, governments and

international organisations on international dispute resolution and public

international law, with a particular focus on the energy, natural resources and

infrastructure sectors, together with environmental, banking and defence issues.

He also advises sovereign clients on jurisdictional immunities issues under public

international law, including in the context of judicial proceedings before European courts. His work on

contentious matters has focused on the Energy Charter Treaty, investment treaties, price revisions under long-

term energy sale contracts, and maritime boundary delimitation. He has appeared as counsel, advocate and

expert before a wide range of international courts and tribunals, including the International Court of Justice,

ICSID, the PCA and the ICC.

Before joining Volterra Fietta, Graham served for 7 years as General Counsel to the Energy Charter

Secretariat, a Brussels-based international organisation responsible for the Energy Charter Treaty. As General

Counsel, Graham participated in intergovernmental negotiations on emergency dispute resolution issues and

energy transit. He also led the development of the Model Agreements for Cross-Border Pipeline Projects and

for Cross-Border Electricity Projects. Graham’s career includes over 15 years in private practice.

Graham is an Honorary Associate of the Graduate School of Natural Resources Law, Policy & Management of

the University of Dundee’s Centre for Energy, Petroleum and Mineral Law and Policy. He is an honorary

member of the Investment Treaty Forum of the British Institute of International and Comparative Law. He is a

member of the Editorial Committee of the International Energy Law Review and of the Journal of Energy &

Natural Resources Law. He has lectured at numerous universities around Europe and is listed in the Who’s

Who in Public International Law.


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David Gaukrodger

Organisation for Economic Co-operation and Development (France)

David Gaukrodger is Head of Unit and Senior Legal Adviser at the OECD

Investment Division. He leads analysis at the OECD about investment treaties

and dispute settlement under those treaties, and provides support for the work

of an investment Roundtable that regularly gathers OECD, G20 and other

governments. Current work is addressing among other things the balance of

investor protection and the right to regulate; and arbitrators, adjudicators and

appointing authorities. Other recent work has addressed joint governmental interpretations, state-to-state

dispute settlement, shareholder claims for reflective loss, and investor-state dispute settlement.

Earlier David led expert teams evaluating compliance by countries with the OECD Anti-Bribery Convention.

He also helped design the G20-mandated peer review system used by a Global Forum that evaluates the

compliance of 120+ jurisdictions with standards for the exchange of tax-related information. Prior to

joining the OECD, David was a Special Counsel with Sullivan & Cromwell LLP. David graduated from

Sciences Po Paris with a “mention lauréat” and obtained law degrees with distinction from the University of

Toronto and the Université de Paris I. He was a law clerk for Justice Gerard La Forest at the Supreme

Court of Canada.

David Goldberg

White & Case (UK)

David is a partner and solicitor-advocate in White & Case’s Global International

Arbitration Group.

David divides his time between London and Moscow and is recognized by leading

legal directories for the strength of his Russian, CIS and Eastern European

practice. He is one of only three lawyers in the world ranked Band 1 for "Dispute

Resolution - Russia (Expertise Based Abroad)" by Chambers Global 2016.

David has experience of both investment and commercial arbitrations conducted under all major arbitral

institutions and rules and also represents clients in court proceedings concerning the conduct of arbitral

proceedings, including the enforcement or challenge to arbitral awards, the appointment of arbitrators and

applications for interim measures such as disclosure and worldwide freezing orders. He is also regularly

appointed as an arbitrator.

David is a founder, trustee and the Secretary General of the Anglo-Russian Law Association, a co-founder and

the Deputy Chairman of the Board of the Russian Arbitration Association and a board member of the LCIA.


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Professor Emmanuel Gaillard

Shearman & Sterling (France)

Emmanuel Gaillard founded and heads Shearman & Sterling’s 100-lawyers

International Arbitration practice. He has advised and represented companies,

States and State-owned entities in hundreds of international arbitrations. He also

acts as arbitrator and expert witness.

Over the course of his career, Emmanuel Gaillard has acted on many of the

largest international disputes submitted to arbitration. In addition to the USD 50 billion award secured for

the majority shareholders of the former Yukos Oil Company, he acted on the ICC arbitration brought by The

Dow Chemical Company against Petrochemical Industries Company of Kuwait, which led to a USD 2.47

billion award in favor of Dow, previously distinguished as the largest arbitral award rendered in the history

of international arbitration.

A Professor of Law in France currently acting as a Visiting Professor of Law at Yale Law School, Emmanuel

Gaillard has written extensively on all aspects of arbitration law, in French and in English. Co-author of a

leading treatise in the field (Fouchard Gaillard Goldman On International Commercial Arbitration), he also

authored the first published essay on the legal theory of international arbitration. The volume, originally

published in French (Aspects Philosophiques du droit de l’arbitrage international), was subsequently

published in English (Legal Theory of International Arbitration), as well as in Arabic, Chinese, Spanish,

Hungarian and Portuguese translations.

Emmanuel Gaillard has been appointed by France on the ICSID Panel of Arbitrators. He regularly acts as

expert for the OECD, UNCTAD, and UNCITRAL. In 2010, he was appointed as expert by UNCITRAL for the

drafting of the forthcoming UNCITRAL Secretariat Guide on the New York Convention.

He chairs the International Arbitration Institute (IAI) and was the first President and one of the co-founders of the International Academy for Arbitration Law.

Paula Hodges QC

Herbert Smith Freehills (UK)

Paula heads Herbert Smith Freehills' Global Arbitration Practice and has over

25 years' experience of advising on international disputes, particularly in the

energy, telecommunications and technology sectors. She specialises in

international arbitration and has represented clients in many jurisdictions

(including London, Paris, Geneva, Zurich, Stockholm, the US, Canada, Dubai,

Africa, Asia, Russia and the CIS) in ad hoc arbitration and proceedings under

the auspices of the major arbitral institutions. She also sits as an arbitrator.

Paula has been closely involved in several high profile cases before the High Court in London, and has

also appeared before the Court of Appeal and House of Lords (now the Supreme Court). Paula studied

law at the University of Cambridge and graduated in 1986 with an M.A. in Law. Paula is a member of the

LCIA Board and Vice President of the LCIA Court. She became a QC in 2014.


9

Professor Tomoko Ishikawa

Nagoya University (Japan)

Tomoko Ishikawa is Associate Professor at Nagoya University in Japan. She is a

member of the ICSID Panel of Conciliators, appointed by the Chairman of the

ICSID Administrative Council, and a member of the Legal Advisory Committee of

the Energy Charter Treaty. Her professional experiences include serving as a

Judge at Tokyo District Court and holding the position of Deputy Director at the

International Legal Affairs Bureau of the Ministry of Foreign Affairs of Japan, where she worked on

bilateral/trilateral investment treaties, Free Trade Agreements and WTO dispute settlement.

Her recent publications include: Case Comment: Marco Gavazzi and Stefano Gavazzi v. Romania - A New

Approach to Determining Jurisdiction over Counterclaims in ICSID Arbitration? ICSID Review (2017,

forthcoming); Restitution as a ‘Second Chance’ for Investor-State Relations: Restitution and Monetary Damages

as Sequential Options, 3 McGill Journal of Dispute Resolution (2016-2017) and Provisional Application of

Treaties at the Crossroads between International and Domestic Law, 31(2) ICSID Review (2016).

Professor Yarik Kryvoi

British Institute of International and Comparative Law (UK)

Professor Yarik Kryvoi is the Senior Research Fellow in International Economic

Law and Director of the Investment Treaty Forum.

He is a Professor of Law at the University of West London (part-time) and teaches

arbitration at the Chartered Institute of Arbitrators. He has several years of

experience practicing international dispute resolution with Freshfields Bruckhaus

Deringer in London, Morgan Lewis & Bockius in Washington, DC and Baker & McKenzie in Saint Petersburg.

He is the founding editor of the CIS Arbitration Forum and serves on editorial boards of several international

legal periodicals.

Professor Kryvoi is a former Co-Chair of the ABA International Courts and Tribunals Committee and has

also has served as a counsel for the Economic Court of the Commonwealth of Independent States advising

on issues of international administrative law. He holds law degrees from Harvard, Moscow, Nottingham,

Utrecht and St Petersburg. He is admitted to practice in the State of New York.


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Maurice Mendelson QC

Blackstone Chambers (UK)

Maurice Mendelson is a barrister (Queen’s Counsel) at Blackstone Chambers,

London, specializing in public international law. He has been in practice at the

English and international Bar since 1971; from 1968 to 2001 he also held

academic posts at the Universities of Oxford and London, most recently the

Chair of International Law at University College, London University, from which

he took early retirement in order to concentrate on his practice.

Amongst his main specialities is the law of international investment protection. He has sat as an ICSID

arbitrator; acted as counsel both for claimants and for respondent states; helped to negotiate investment

protection treaties; advised governments on their investment protection legislative and treaty programmes;

advised companies and individuals on aspects of the structuring of their investments; and given expert

evidence to the Supreme Courts of various states and to international arbitral tribunals.

He has published widely in this field, and is Consultant Moderator (formerly Moderator-in-Chief) of

OGEMID, the leading list serve in international arbitration and mediation.

Audley Sheppard QC

Clifford Chance and ITF Advisory Board (UK)

Audley is a Partner and Co-Head of the International Arbitration Group at

Clifford Chance LLP, based in London. He specialises in the resolution of major

disputes arising out of infrastructure and energy projects, and international

trade and investment. He also sits as an arbitrator (over 30 appointments).

His professional activities include: Chairman of the LCIA Board; Visiting

Professor, School of International Arbitration, Queen Mary, London; Editorial Boards of Business Law

International, Journal of International Arbitration, International Arbitration Law Review; and Advisory

Board, BIICL Investment Treaty Forum, and Arbitration Ireland.

He is a former: Vice-President of the LCIA Court (2013-2016); Member of the ICC Court (2008 – 2012);

Co-Chair of the IBA Arbitration Committee (2006-08); Rapporteur of the ILA Arbitration Committee (1996-

2006). He graduated with LLB (Hons) and B.Commerce (Victoria Univ. of Wellington, NZ) and LLM

(Cambridge, England). He was appointed a Queen's Counsel in 2015.

His recent publications include: "The Approach of Investment Treaty Tribunals to Evidential Privileges"

(ICSID Review, 2016); "English Arbitration Act 1996" in "Concise International Arbitration" (Kluwer, 2015)

(ed. Loukas Mistelis); ‘Commentary on UK Investment Treaty’, in “Commentaries on Selected Model

Investment Treaties” (OUP, 2013) (with Chester Brown); ‘Applicable substantive law’, in “Arbitration in

England” (Kluwer, 2013) (eds Julian Lew & ors); ‘Human rights responsibilities in the oil and gas sector:

applying the UN Guiding Principles’, in JWEL (2013, vol. 6, no 2) (with Rae Lindsey, Anthony Crockett &

ors). He has New Zealand and Ireland nationality.


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Dr Romesh Weeramantry

Clifford Chance (Hong Kong)

Dr Romesh Weeramantry is a Foreign Legal Consultant at Clifford Chance in

Hong Kong. He specializes in investment treaty disputes and complex cross-

border commercial arbitrations. He has previously worked at the Iran-United

States Claims Tribunal and at the United Nations Compensation Commission,

which resolved claims resulting from Iraq's invasion of Kuwait. His publications

include The Hong Kong Arbitration Ordinance: Commentary and Annotations

(2nd edition, Sweet & Maxwell 2015), Treaty Interpretation in Investment Arbitration (Oxford UP 2012);

and International Commercial Arbitration: An Asia-Pacific Perspective (Cambridge UP 2011).

He is a General Editor of the Asian Dispute Review, a General Arbitration Editor of the Hong Kong White

Book and is an Adjunct Professor of Law at the University of Hong Kong. He also serves on the Editorial

Board of the ICSID Review, the IBA Subcommittee on Investment Treaty Arbitration and the Hong Kong

Arbitration Charity Ball Committee.


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INVESTMENT TREATY FORUM

Overview

The Investment Treaty Forum (ITF) was founded in 2004. Its aim is to provide a global centre for

serious high level debate in the field of international investment law.

The Forum is a membership-based group, bringing together some of the most expert and experienced

lawyers, business managers, policy advisers, academics and government officials working in the field.

Like BIICL itself, the Forum has a reputation for independence, even-handedness and academic rigour.

The Forum membership is by invitation only.

People

Patrons

The Patrons of the Forum are: HE Judge Rosalyn Higgins DBE QC, Professor Florentino Feliciano and

Yves Fortier CC QC.

Forum Director

The Forum Director is Professor Yarik Kryvoi

The Advisory Board

Since its inception the Investment Treaty Forum's programme has been guided on an informal basis by

a small Advisory Board which currently comprises:

Professor Andrea Bjorklund, McGill University;

Professor A Vaughan Lowe, All Souls College Oxford and Essex Court Chambers;

Loretta Malintoppi, 39 Essex Chambers, London;

Audley Sheppard, Clifford Chance LLP, London;

Robert Volterra, Volterra Fietta, London.

The Public International Law Advisory Panel of the British Institute of International and Comparative

Law also provides useful advice and support to the Forum.

Membership

The ITF's strength lies in its membership, which is drawn from as wide a range of backgrounds as

possible. Members meet regularly (typically 3-4 times each year) to discuss topical issues and, where

appropriate, to develop views on issues of concern to governments and decision-makers. The Forum

also has strong links with related institutions (including the UK Foreign and Commonwealth Office, the

UNCTAD and many others).


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Benefits of membership

Key benefits for ITF members include:

The opportunity to participate in an independently-run Forum that aims to influence investment

treaty law and policy, providing an arena for ongoing and constructive debate with relevant

actors

A direct influence on the agenda of Forum meetings and the opportunity to recommend topics

for debate

The opportunity to suggest research or other work to be carried out by the Forum staff

Access to research carried out by the Forum Director and other staff

A place at each Forum meeting, as well as free attendance for nominated Forum members at

public conferences and discussions related to the field

General BIICL individual membership benefits for nominated representatives of each Forum

member

The opportunity to recommend guest speakers to be invited to Forum discussions and

conferences.

Conditions of membership

Forum membership is limited by invitation only, to ensure the highest quality in its plenary discussions.

To guarantee continuity, and manageability of debate, membership is for named individuals only.

However, at the time of joining, members may nominate a senior colleague to represent them on those

occasions when they are unable to attend meetings.

Membership rates

Membership of the ITF is available at the following annual rates (exclusive of VAT):

Corporate membership: £2,750

Individuals: £500

The Forum membership is by invitation only. For more information on ITF membership please visit

www.biicl.org/investmenttreatyforum or contact Professor Yarik Kryvoi ([email protected]).

http://www.biicl.org/investmenttreatyforum

mailto:[email protected]


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BIICL @BIICL #itflaw [email protected]

www.biicl.org | www.biicl.org/investmenttreatyforum

Lunch Sponsored by

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https://www.transnational-dispute-management.com/

http://www.crai.co.uk/

investment treaty forum - biicl.org nearest underground stations ... sir frank berman kcmg qc, ......

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