Twentieth Public Meeting of the Investment Treaty Forum
The Litigation of Public Law Concepts in Investor-State Arbitration – Practical and Theoretical Considerations
Friday 10 May 2013 09:00 to 17:30
LocationLondon House, Goodenough College, Mecklenburgh Square, Bloomsbury, London WC1N 2AB
Tim Eicke QC, Essex Court Chambers
Samuel Wordsworth QC, Essex Court Chambers
Claudia Annacker, Cleary Gottlieb Steen & Hamilton LLP (Paris)
Christophe Douaire de Bondy, Trade Law Bureau, Department of Foreign Affairs and International Trade (Canada)
William W Burke-White, University of Pennsylvania
N Jansen Calamita, British Institute of International and Comparative Law; University of Birmingham
Judd Kessler, Porter Wright (Washington)
Silvia Marchili, King & Spalding (Houston)
Federico Ortino, King's College London
Martins Paparinskis, Merton College, University of Oxford
Lluis Paradell, Freshfields Bruckhaus Deringer (Rome)
Stephan Schill, Max Planck Institute
Muthucumaraswamy Sornarajah, National University of Singapore
Valentina Vadi, University of Maastricht
Robert Volterra, Volterra Fietta LLP
The similarity between investment treaty law and systems of public law is an observable dynamic. From the adoption by investment treaty tribunals of public law terms in the interpretation of substantive guarantees of protection to questions about the degree of deference owed to states in the adjudication of investor-state claims, the litigation of public law concepts has become central to the investment treaty regime. This conference looks at this nexus from both practical and theoretical perspectives through panels addressing Proportionality, Legitimate Expectations and Standards of Review.
Among other issues, panels will look at the sources of public law concepts in investment treaty law, asking whether such concepts are intrinsic parts of treaty standards or instead form part of custom or 'general principles of law'. Panels will also address the practical challenges presented for arbitrators and litigators in hearing and preparing cases in which public law concepts may feature prominently. More broadly, panels will consider whether the adoption of public law concepts rooted in particular systems of law might tend to assimilate treaty guarantees to those systems rather than aid the ascertainment of treaty meaning.
Panels will address:
- Proportionality. The concept of proportionality cuts across the interpretation and application of treaty provisions. But what is the positive basis for its invocation in the application of treaties that make no mention of it as a value? Is it an inherent aspect of certain treaty standards, or is it a 'general principle of law' or custom? Does its use tend to 'Europeanize' treaty guarantees? What challenges does it present for arbitrators and litigators in hearing and preparing cases?
- Legitimate Expectations. Like proportionality, the concept of legitimate expectations cuts across the interpretation and application of treaty provisions. And like proportionality as well, questions remain about its pedigree in investment treaty cases. In nomenclature at least it is a concept of European public law, although it finds analogy in US law as well. Does municipal public law have anything to add to the use of this concept in investment treaty interpretation or in the application of investment treaty standards? Are legitimate expectations an inherent part of substantive protections like fair and equitable treatment? What is the standard of proof to establish a 'legitimate' expectation?
- Standards of Review. In domestic systems, the balance of power between the judiciary and other branches of government depends upon the use of standards of review by the courts. In European public law the concept of margins of appreciation has been adopted to a similar end. Public international law has few rules on the subject and such rules as are found in general PIL are complicated by the particular nature of investor-State arbitration. Is investor-State developing its own rules and principles? Does the increasingly variegated character of investment treaties make this possible or proper?
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