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

(56 Ratings)

Produced on: November 20, 2014

Course Format On Demand Audio

Taught by

Categories:

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 Co-Head of Investment Arbitration and a partner in Squire Patton Boggs’ world-ranked international arbitration group. He has represented the winning party in many of the largest international arbitrations in the world over the past 15 years. Mr. Anway has worked in more than 30 countries and has represented clients – including 10 different sovereign nations and numerous foreign investors – in more than 75 international arbitration proceedings. Those cases include arbitrations brought under more than 10 different investment treaties, free-trade agreements and the Energy Charter Treaty. Every year, 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 the Slovak Republic in two billion-dollar investment treaty arbitrations, both resulting in major wins for the Slovak Republic, and for the Republic of Kosovo, which resulted in a full victory for Kosovo. He was also counsel to the Republic of Ecuador in a billion-dollar arbitration, which resulted in the then largest annulment in ICSID history in favor of Ecuador.

 

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.


In December 2017, Law360 named Stephen as one of the top three MVPs in international arbitration in the world. In August 2017, Who’s Who Legal named Stephen to its list of Arbitration Future Leaders 2018. He received the same honor in 2017. In March 2016, Law360ranked Stephen as one of the top 10 international arbitration lawyers under the age of 40. In February 2016, the National Law Journal named him one of the top 50 Alternative Dispute Resolution (ADR) lawyers. In June 2015, The American Lawyer awarded Stephen the Arbitration Award at its inaugural Transatlantic Legal Awards dinner in London. In both 2014 and 2015, the International Law Office awarded him the Client Choice Award for the Arbitration category in New York. In 2014, Crain’s Business named him to its Forty under 40. 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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