Investment-Treaty Law & Arbitration (Part 2): State Attribution, Sovereign Acts, and Content of Protections under Investment Treaties

(73 Ratings)

Produced on: November 19, 2014

Course Format On Demand Audio

Taught by

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Course Description

Time 68 minutes
Difficulty Advanced

This program is the second in a multi-part curriculum on investment-treaty law and arbitration by Stephen Anway, partner at Squire Patton Boggs and the 2014 Client Choice Award winner for arbitration in New York.  Whereas the first program provided a general overview to investment treaty law, the circumstances in which investment treaty protection is triggered, and jurisdictional bases of investment-treaty arbitration, this second program focuses on situations in which acts are attributable to the State under public international law, which State acts are capable of violating investment-treaties, and how investment treaty tribunals have interpreted the substantive protections of investment-treaties. 

 

With the explosion in the number of investment-treaties in the last two decades (now totaling more than 3,000), an increasing number of foreign investors began bringing treaty claims against host countries at the start of the 21st century.  The arbitral tribunals were thus called upon to write awards in which they ruled for the investor or the country and, in so doing, developed a body of case law regarding which States acts can violate public international law and interpreting these treaty provisions, applying them to common fact patterns.  That body of case law—which consists of more than 400 awards—informs our understanding of which acts are attributable to the State under public international law, which acts undertaken by the State (assuming attribution) are capable of violating investment-treaties, and the content of countries’ obligations under investment-treaties.  In this program, Mr. Anway analyzes these issues and discusses how international tribunals have analyzed them in arbitral awards.  

 

In this course, Mr. Anway reviews:

  • State attribution principles under public international law
  • The difference between imperium acts (state governmental acts) in contrast to commercial acts
  • The protection against expropriation without compensation
  • The full protection and security standard
  • The most-favored nation protection
  • The national treatment protection
  • The “umbrella” clause protection

 

Learning Objectives:

I.   Grasp which State acts are capable of violating an investment-treaty

II.  Distinguish between the issue of State attribution and the issue of whether an act is an exercise of the State’s imperium or a commercial act

III. Understand the substantive protections given to investors in investment treaties

IV. Recognize how tribunals have interpreted substantive protections of investment-treaties in practice

V.  Understand which State actions are likely to be considered a violation of an investment treaty

 

 

 

Faculty

Stephen Anway

Squire Patton Boggs

Stephen Anway is a partner in Squire Patton Boggs’ world-ranked international arbitration group. He spends 100% of his counsel time representing clients in major international arbitrations and has acted as counsel in some 50 international arbitration proceedings brought under more than 10 different investment treaties, free-trade agreements and the Energy Charter Treaty.  Each spring, Mr. Anway teaches a 13-week doctrinal course on international arbitration at Case Western Reserve University School of Law, where he serves as an Adjunct Professor of Law.  

 

Mr. Anway specializes in both investment treaty arbitration and international commercial arbitration.  His investment-treaty arbitration experience includes representing the Czech Republic in three major cases in 2009, 2012, and 2013 (each worth approximately $100 million).  The Czech Republic fully defeated the claims in each of them.  More recently, he acted as counsel for Slovakia in the precedent-setting case, Achmea B.V. v. The Slovak Republic, Final Award dated 20 May 2014, in which Slovakia fully defeated the foreign investor’s claims under the Dutch-Slovak Bilateral Investment Treaty and was awarded its costs and legal fees.

 

Mr. Anway also specializes in high-stakes natural gas price review arbitrations.  In 2013, he acted as counsel in an International Chamber of Commerce (ICC) arbitration in which his client won more than $395 million.  That award followed another ICC decision in August 2012, which awarded his client $580 million.  Mr. Anway was also counsel for the winning party in two different UNCITRAL awards worth over $1 billion—one in 2005 and one in 2008.

 

Mr. Anway is the exclusive recipient of the 2014 Client Choice Award from the International Law Office (ILO) for the “Arbitration” category in New York.  In June 2013, The American Lawyer Arbitration Scorecard published its list of the 20 Largest Commercial Arbitration Awards ever captured by the publication (dating back to 2001), and Mr. Anway represented the winning party in three of them.

Reviews

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Mark S.

Outstanding speaker

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