Investment-Treaty Law & Arbitration (Part 3): Remedies, Annulment, and Enforcement

(56 Ratings)

Produced on: November 20, 2014

Course Format On Demand Audio

Taught by

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Course Description

Time 60 minutes
Difficulty Advanced

This program is the third 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 two parts of the curriculum focused on pre-arbitration matters, investment-treaty arbitration procedure, and the merits of disputes under investment-treaties, this third part focuses on issues that can arise after the resolution of the merits of the dispute - most notably, remedies in investment-treaty arbitration, the annulment of the award, and the enforcement of the award. 

 

Because remedies in investment-treaty arbitration can be rendered against the State, tensions exist between sovereign immunity, regulatory sovereignty, and investor protection under international investment law. This course describes the various types of remedies traditionally available in the US and examines how they have fared in investment-treaty arbitration—including restitution, specific performance, declaratory judgment, and compensatory and non-compensatory damages, such as punitive damages. With regard to damages, this course maps the valuation methods that have been applied by investment treaty tribunals in damage assessment. 

 

After reviewing the remedies available in investment-treaty arbitration, Mr. Anway then turns to the issuance of the award and the circumstances under which the award can be annulled or set-aside. He explains that, in general terms, the grounds and procedure by which an award can be annulled or set-aside depends on whether the dispute is adjudicated by a tribunal operating under the auspices of the International Centre of Settlement of Investment Disputes (“ICSID”), which has a self-contained system, or a tribunal operating under the purview of a different institution or an ad hoc tribunal, where setting aside of the award will be governed by the national law of the seat of the arbitration.

 

Mr. Anway describes how that same distinction must be drawn with regard to enforcement of the award: where it is an ICSID award, the ICSID Convention will govern the enforcement proceeding; where it is a non-ICSID award, the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) is likely to apply. 

 

In this course, Mr. Anway reviews:

  • Different remedies under public international law
  • Various valuation methods to assess damages
  • Annulling (setting aside) investment-treaty awards
  • Enforcing investment-treaty awards
  • Sovereign immunity considerations

 

Learning Objectives:

I.   Understand which remedies are available in investment-treaty arbitration

II.  Learn methods of valuation traditionally used by investment-treaty tribunals

III. Review sovereign immunity principles in the context of remedies in investment-treaty arbitration

IV. Know the circumstances under which investment-treaty awards can be annulled or set-aside

V.  Grasp the basic enforcement structure for investment-treaty awards

 

 

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

JR
Jenik R.

Anway sets the standard for a good presentation. Wish others would have his standard, EXCELLENT

BD
Brian D.

Really great job!

AP
A. P.

Excellent presentation

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