Investor-State arbitration specialists recently gathered in Prague alongside leading government officials for the high-profile, invitation-only Investment Treaty Arbitration Conference to share views and experience on some of today’s most hotly debated issues.
This ninth edition of an annual event organized by the Czech Ministry of Finance since 2011 was held at the elegant premises of the Liechtenstein palace located in the historic center of the Czech capital—or, as French surrealist André Breton would have said, the “magical capital of old Europe”—only a few steps away from the famous Charles Bridge. That setting perfectly complemented the event’s ordre du jour.
The distinguished guests were given a warm welcome by Martina Matejová, director of the Legislation and Dispute Agenda Department of the Ministry of Finance, and KPMG’s CEE Dispute Advisory Services Leader, Jiří Urban, who then passed the floor over to fellow colleagues and eminent personalities in the field of investment arbitration, including the likes of Professor Zachary Douglas or UNCITRAL’s Secretary, Anna Joubin-Bret. And it goes without saying that the conference’s top-notch program would not have been complete without Squire Patton Boggs.
Our Prague, Bratislava, New York and Paris investment arbitration specialist lawyers came from around the globe—or, more accurately, “des quatre coins du globe,” as the well-known French expression goes—to take active part in the conference not only as speakers, but also as hosts of the glittering cocktail party, which traditionally concludes the event.
Squire Patton Boggs lawyers discussed hot topics in investment treaty arbitration
In a panel focusing on practical issues facing respondent States, our brilliant Prague & Paris partner and global co-head of investment arbitration practice, Rostislav Pekař, explored the question of the timing of tribunals’ decisions on requests for bifurcation. Under current practice, tribunals usually deal with the matter as early as at the first case management conference. Drawing on his wealth of experience in representing States and State-owned entities, Rostislav pointed out that such practice forces States to put forward their jurisdictional objections at an extremely early stage of the proceedings, when neither the State nor the tribunal has an opportunity to get a good grasp on the case. A possible solution, which would allow tribunals to reach better-informed decisions on whether or not to bifurcate, Rostislav suggested, would be for the tribunals to invite parties to agree on two timetables (bifurcated and non-bifurcated), and to opt for one or the other only after having reviewed the Statement of Claim as well as a specific request for bifurcation. The suggestion aroused much interest and met with approval from panel chair Erica Stein (Dechert) and co-panelists Kabir Duggal (Arnold & Porter) and Laura Halonen (Wagner Arbitration).
New York-based partner Stephen P. Anway, who became global co-chair of the firm’s international dispute resolution practice earlier this year, moderated a panel discussion on the practical consequences of the now notorious decision of the Court of Justice of the European Union in Slovakia v. Achmea. There, as the readers will recall, the Court ruled that arbitration clauses contained under bilateral investment treaties concluded between EU Member States were incompatible with EU law. This is because, the Court reasoned, arbitral tribunals constituted under such treaties could be brought to decide on matters of EU law, which fall within the exclusive jurisdiction of the Court. The exact scope and impact of Achmea on international investment arbitration was, however, unclear. Was it “the end of an era or simply a bump in the road?,” Steve asked the panelists.
Dmitri Evseev (Arnold & Porter), Laurence Franc-Menget (HSF) and Markus Burgstaller (Hogan Lovells) concurred that, in the aftermath of the Court’s ruling, international investment tribunals have consistently rejected the Achmea-based objection to their jurisdiction. This is especially true, the panelists observed, for arbitral tribunals constituted under the Energy Charter Treaty, which appear to be left completely intact by the Court’s ruling. While Achmea shook the world of investment arbitration when it was rendered, a year and a half later, it seems that its impact is, after all, limited.
Steve’s fellow partner in New York, Miriam K. Harwood, who joined us this spring to lead our investment arbitration practice alongside Rostislav, gave invaluable insight on interpretive issues surrounding investment treaties’ protection of investors’ legitimate expectations. In particular, Miriam reflected on the legal basis for incorporating the doctrine of legitimate expectations into the fair and equitable treatment standard. The subject sparked a thought-provoking discussion among the panelists. Tom Sikora (Exxon), for example, mentioned the Saluka case in support of the view that investment tribunals considered the doctrine to be so deeply enshrined in the fair and equitable standard that, in his experience, parties usually deemed it unnecessary to even comment on the doctrine’s legal source. Zachary Douglas (Matrix Chambers) agreed, and added that international investment law ought, in any event, to protect investors’ legitimate expectations. The fair and equitable treatment standard, the renowned specialist concluded, was the most suitable way to do so. No doubt, Miriam’s presentation shed some much-needed light on a sphere, which continues to both fascinate and haunt arbitration practitioners and investors alike.
Squire Patton Boggs hosted the traditional cocktail party
At the end of the panel discussions, investment arbitration co-heads, Miriam and Rostislav, greeted all the beau monde, and invited them to join the SPB-sponsored cocktail party to mingle, enjoy a glass of carefully selected champagne & wine, and taste some delicious amuse-bouches.
Unity makes strength: Squire Patton Boggs Paris side by side with NYC, Prague and Bratislava colleagues
For some years now, Squire Patton Boggs has been recognized as one of the world’s most “global” firms. Undisputedly, that recognition is due, in large part, to our international arbitration team, which spreads across continents and continues to grow every day. But despite its world-wide reach, the team has been dedicated to remaining tightly knitted—and that is what makes it truly stand out among its competitors. This became apparent also at this year’s edition of the Investment Treaty Arbitration conference, which saw the attendance of not only our eminent partners&associates from Prague and Bratislava, including Mária Poláková, Eva Cibulková, David Seidl, Nikola Klímová, Matej Pustay, Nicole Jančová or Tamara Korešová, but also lawyers who live much farther away.
And not just any lawyers: leading attorney of the place de Paris, Carole Sportes, whose strong strategic mindset, excellent presentation, and unparalleled interpersonal communication skills make her admired and appreciated by employees and clients alike¾and therefore an obvious choice for the position of our Paris’ office managing partner and head of its vibrant international dispute resolution department¾flew from the French capital to honor her Prague, NYC & Bratislava colleagues with her presence at the event. Carole was joined by Paris-based associate, Tereza Psůtková.
Our highly esteemed partner, Ali R. Gürsel, travelled, for his part, all the way from New York to meet with and cheer for his colleagues and friends at the successful event.
Cheers… until next year’s edition!