AILA Brochure

—— ensuring participation in the global legal community ——

INVESTMENT TREATY LAW AND ARBITRATION PROGRAMME

OUR SPONSORS & SUPPORTERS

EACC

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CONTENTS

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MANAGING DIRECTOR’S WELCOME “Give a man a fish and he will eat for a day. Teach a man to fish and he will eat for the rest of his life”.

International legal awareness is at the heart of any effort toward global economic integration. AILA recognises this and works to ensure inclusion of marginalised economies through the provision of accessible and affordable legal training and legal advice on international economic law.

Africa, particularly Sub-Saharan Africa, is continuing to show good signs of economic expansion. There’s been an increase in Foreign Direct Investment (FDI) inflows into the continent. Many African countries are modernising their national legal frameworks and participating actively in international investment agreements both at the bilateral and regional levels, aimed at reducing obstacles to FDI.

As a foreign investor, the existence of an international investment agreement represents a sense of security in your investment. As a host-state this not only represents an opportunity for growth and development but also the opportunity to ensure that you retain your regulatory flexibility and ability to formulate responsible public policies by striking a delicate balance between different perspectives. The question of how to accommodate this essential balance is frequently at the heart of disputes arising out of bilateral investment treaties. With increased FDI inflows into the continent, it is inevitable that such disputes will arise. This is therefore an opportune time for African states to develop expertise in investment treaty law and investment arbitration, and AILA is well placed to assist. We welcome you to make use of our services. Rukia Baruti Founder and Managing Director

Foreword By Stephen Karangizi…………..

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About AILA…………………………………………

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Advisory Board…………………………………..

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Faculty Members……………………………….

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Membership……………………………………….

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Programme Synopsis…………………………..

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Tailor-made programmes……………………

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Application, tuition, certification ………..

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Upcoming Events………………………………..

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Feedback…………………………………………..

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Stephen Karangizi Director and CEO of the African Legal Support Facility and AILA Advisory Board Member

FOREWORD I am pleased to join the AILA in raising awareness about International Economic Law issues that affect Africa extensively. It is generally accepted that lack of capacity to deal with these issues poses a fundamental challenge for African countries. Unfortunately most of the training provided at African Universities and post-graduate institutions has not responded to the vastly altered business environment on the continent. Over the past two decades African countries have made strenuous efforts to attract Foreign Direct Investment. There is debate about the actual effect of investment treaties given that the treaties alone do not necessary guarantee increased foreign direct investment. Increasingly African countries have also adopted national legislation that establishes domestic measures with a huge impact on investment. Understanding, the relationship between the international treaties and investment legislation is one area that requires adequate attention. African lawyers, or indeed any lawyers from any middle or low income country, are best placed to advise on and participate in arising disputes in international investment issues if they have the adequate training and exposure. AILA therefore provides an opportunity for African countries to develop high level expertise to assist them in negotiating those agreements and also in implementing the Agreements to ensure balanced benefits to all parties.

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ABOUT AILA

AILA is a non-profit organisation that conducts legal awareness workshops in international economic law through lectures, conferences and seminars offered to low and middle income countries. Through its BLOG and Newsletters AILA provides a forum for sharing information on the effect and the development of international economic law in low and middle income countries. Although we do not limit our coverage to any one region, we have focused our efforts on Africa.

AILA is an authorised external Continuing Professional Development provider. Its flagship programme is an annual week-long training programme in London on investment treaty law and arbitration, offered to government and private practice lawyers from low and middle income countries. AILA also delivers tailor-made programmes designed to meet a party's specific needs in their home country.

While these exchanges of knowledge are essential for legal empowerment, it is also important to ensure that legal assistance in international economic law issues is affordable and accessible. Accordingly, AILA also provides pro bono legal advice through its external legal counsel consisting of law firms and lawyers that have assisted a party in all procedural and substantive issues arising out of international investment agreements.

Our aims are to:

• promote sustainable economic development in African countries and to members of other low and middle income countries through the advancement of knowledge, education, training, professional competence and practice in international economic laws or practices relating to investment, trade and all other economic aspects of relations which regulate international transactions;

• advance the education of the public in African countries and to members of other low and middle income countries in international economic laws or practices relating to investment, trade and all other economic aspects of relations which regulate international transactions by all or any of the following means: lectures, conferences, seminars, or other similar forms of communication, practical experience schemes and similar programmes, mentoring, publications, or by commissioning research (and publishing the results of such research); and

• relieve poverty by providing pro bono legal advice, consultation, assistance and representation to African countries and to members of other low and middle income countries on matters of public, policy, educational or legal interest concerning any international economic laws or practices relating to investment, trade and all other economic aspects of relations which regulate international transactions.

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ADVISORY BOARD

Albert Jan van den Berg is founding partner of Hanotiau & van den Berg in Brussels, an arbitrator, a Professor at Law, the Arbitration Chair at Erasmus University Rotterdam, and the President of the Netherlands Arbitration Institute and is a visiting Professor at the University of Miami School of Law Centre for International Arbitration.

Chantal Ononaiwu is the Trade Policy & Legal Specialist at the Office of Trade Negotiations, Caribbean Community (CARICOM) Secretariat, based in Barbados. She advises on textual proposals pertinent to CARICOM’s external trade negotiations, particularly in the subjects of Services, Investment and Dispute Settlement. She is also a lecturer on the MSc in International Trade Policy at the University of West Indies.

Hon. Justice E. Torgbor, a former judge of the High Court of Kenya is a Chartered Arbitrator, Professor of Mercantile Law, and an International Legal Consultant. Prior to his appointment as High Court judge he practiced as Barrister in England. He is an expert in Law and Development with experience in Africa and Europe. He also teaches at University level.

Gary Born is Chair of the International Practice Group at WilmerHale. He heads the firm’s international arbitration group in London. He also sits as arbitrator and has taught law at Stanford Law School, St. Gallen University, Georgetown University Law Center, University of Virginia College of Law, University College London and University of Arizona College of Law.

Guglielmo Verdirame is barrister at 20 Essex Chambers, London. He is also a lecturer in International Law at the University of Cambridge and a Fellow of the Lauterpacht Centre for International Law.

Lise Bosman is Legal Counsel to the Permanent Court of Arbitration and Executive Editor to ICCA Publications. She is also a part-time Professor at the University of Cape Town.

Philip Alliker is a barrister at Tanfield Chambers. He is a Chartered Arbitrator and a Fellow of the Chartered Institute of Arbitrators. He is also an accredited mediator and is admitted to the Roll of Advocates in Uganda, the Dubai International Financial Court and in the State of New York as Foreign Legal Consultant.

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Stephen Karangizi is the Director and CEO of the African Legal Support Facility at the African Development Bank (AfDB). Prior to joining AfDB he was Assistant Secretary General of COMESA; Legal Advisor to the Attorney General of Antigua and Bermuda, West Indies; Legal Advisor to the National Assembly of Uganda and a Senior Law Officer with the Ministry of Justice, Legal and Parliamentary Affairs of Zimbabwe.

Swithin Munyantwali is Executive Director and Co-Founder of the International Law Institute African Centre for Legal Excellence (ILI-ACLE). He is also an advisor and Board member to international entities such as UNCTAD.

Supporting Africa International Legal AwarenessSupporting Africa International Legal AwarenessSupporting

Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings

www.allenovery.com

Chris Marshall Tel: +44 20 3088 3685

Allen & Overy LLP, One Bishops Square, London, E1 6AD, United Kingdom.

Tim Scales Tel: +33 1 40 06 53 76

Allen & Overy LLP, 52 avenue Hoche, CS 90005, Cedex 08, Paris, 75379, France.

CS1210_CDD-4357_ADD-800

Committed to AfricaOver 100 lawyers advising on pan African matters

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FACULTY MEMBERS The following is a sample of our growing faculty Name Organisation Country

1. Albert Jan van den Berg Partner

Hanotiau & Van den Berg Belgium

2. Alejandro Escobar, Partner Baker Botts London 3. Andrea Menaker, Partner White & Case Washington D.C 4. Anthea Roberts, Lecturer London School of Economics London 5. Anthony Sinclair, Partner Quinn Emanuel London 6. Audley Shephard, Partner Clifford Chance London 7. Barton Legum, Partner Salans Paris 8. Charles Nairac, Partner White & Case Paris 9. Edward Guntrip, Lecturer University of East Anglia Norwich 10. Dr Federico Ortino, Lecturer King’s College London 11. George Burn, Partner Salans London 12. Guglielmo Verdirame

Barrister 20 Essex Chambers London

13. Jamsheed Peeroo, Lawyer Chambers of A.R.M.A Peeroo SC GOSK Mauritius 14. Khawar Qureshi, Barrister Serle Court London 15. Lise Bosman, Legal Counsel Permanent Court of Arbitration The Netherlands 16. Luis Gonzalez Garcia

Barrister Matrix Chambers London

17. Mark McNeill, Partner Shearman & Sterling Paris 18. Matthew Weiniger, Partner Herbert Smith Freehills London 19. Dr Mavluda Sattorova

Lecturer University of Liverpool Liverpool

20. N. Jansen Calamita Director/Lecturer

BIICL/University of Birmingham London/Birmingham

21. Nima Elmi, Associate Allen & Overy London 22. Noah Rubins, Partner Freshfields Bruckhaus Deringer Paris 23. Norah Gallagher, Lecturer Queen Mary, University of London London 24. Dr Okechukwu Ejims

Lecturer University of Leeds Leeds

25. Philippa Charles, Partner Mayer Brown London 26. Robert Volterra, Partner Volterra Fietta London 27. Rukia Baruti

Managing Director AILA London

28. Salim Moollan, Barrister Essex Court Chambers London 29. Sam Wordsworth

Barrister Essex Court Chambers London

30. Sophie Lamb, Partner Debevoise & Plimpton London 31. Steven Finizio, Partner WilmerHale London 32. Prof. William Kosar

Senior Legal Advisor UNDP Rwanda

33. Yas Banifatemi, Partner Shearman & Sterling Paris

Shearman & Sterling fully supports AILA’s mission

and is proud to contribute to its educational program

on international investment law in Africa.

shearman.com/africa

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MEMBERSHIP

Membership of AILA is open to any person or body, including students, academics, lawyers, arbitrators, governments, state entities, experts, businesspersons, law firms and commercial and trading organisations with an interest in international economic law, including investment treaty law, investment arbitration, international commercial arbitration, international trade law and such other laws that regulate international economic relations. MEMBERSHIP BENEFITS AILA Directory of Members Members are included in an Electronic Membership Directory on the AILA website. The Directory consists of members' names, contact details, areas of specialisation and interest groups. Members are able to update their personal and professional details online. Members also receive a hard-copy Membership Directory once per year. AILA Training Events/Conferences/Seminars Members receive advance notice of all training events, conferences and seminars, entitling you (as a delegate) to an early bird registration fee and providing you (as an expert) with an opportunity to express your interest in participating as a guest Faculty Member, conference or seminar speaker. Members receive 10% discount on all AILA events and CPD points for attending our CPD accredited events. Corporate Members may arrange with AILA to have training tailored to their specific needs delivered in their home country.

Online access Members have exclusive online access to materials from past events. Pro bono Legal Advice All members from developing and less developed countries are entitled to receive FREE legal advice on investment treaty issues (up to a maximum of 4 hours during a member’s annual subscription) through AILA’s Roster of External Legal Counsel. Members wishing to receive additional advice over and above the initial four hours will be charged a discounted fee. External Legal Counsel All members with expertise in investment treaty law wishing to register as External Legal Counsel with AILA can apply to do so with exemption from the usual registration fees. AILA E-Newsletter Members receive AILA’s occasional E-Newsletter covering news items, conference/seminar/training updates, articles on recent developments to which all members are invited to submit contributions. AILA BLOG Members may make submissions to the AILA Blog on the effect and development of international economic law in developing and less developed countries from Africa, Asia, the Caribbean, Europe, Latin America and the Middle East. Members can base their submissions on topical legal issues; legislation updates; and case updates on investment, international trade, international arbitration and intellectual property. Members are encouraged to submit short blogs or in-depth articles to invite comments for an engaging discussion on all current issues.

Discounted subscription to the Transnational Dispute Resolution/OGEMID

Members are eligible for a 15% discount on the standard TDM/OGEMID subscription rates. Members can register for an OGEMID free trial for inclusion in the mailinglist (listserve) which brings together most of the world's experienced professionals in the field of international dispute management with a particular emphasis on investment disputes.

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PAYMENTWhen your payment is received you will be able to gain access to the Members Only area..

Payment may be made by the following methods:

Bank TransferPlease instruct your bank to make the transfer “free of charge to AILA”.

Bank: HSBC Bank PlcBranch: 448-454 High Road London, N17 9DFAccount Name: Africa International Legal Awareness LtdAccount No: 01623885Sort Code: 40-06-20IBAN No: GB38MIDL40062001623885BIC Code: MIDLGB2124W

ChequeIn favour of Africa International Legal Awareness LtdIf cheque is not drawn on a UK bank, please add £20

I have arranged payment by:

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I/We wish to register as:

□A full-time Student Member (proof of status required)

□An Individual Member

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ANNUAL SUBSCRIPTIONMembership runs for twelve consecutive calendar months from the date of confirmation of membership.

MEMBERSHIP LEVEL FEE STUDENT (full-time) £50 INDIVIDUAL £100 CORPORATE 1* • Non-Profits • State/Government bodies • Universities

£380 (£85)

CORPORATE 2* Up to 10 partners

£480 (£110)

CORPORATE 3* 10 + partners

£680 (£160)

*Corporate Annual Subscription rates cover up to four individuals. Each additional member may be included for an extra subscription as shown in brackets above.

STUDENT/INDIVIDUAL MEMBERSHIP

TITLE______OCCUPATION_________________________FIRST NAME_____________________________________LAST NAME______________________________________NATIONALITIES___________________________________ORGANISATION__________________________________ADDRESS_______________________________________________________________________________________________________________________________________COUNTRY_______________________________________TEL_____________________________________________FAX_____________________________________________EMAIL___________________________________________AREAS OF SPECIALISATION*:________________________________________________________________________________________________________________________________________________

***Please limit yourself to a maximum of 5 entries. Further entries will not be published.

• Extractive Industries• Intellectual Property• International Commercial Arbitration• Investment Dispute• International Trade• International Tax• Other (Please specify)

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**Covers up to four individuals. Additional members may be included for an extra subscription each as shown overleaf.





Africa International Legal Awareness

Suite 15124 Lower Ground Floor

145-147 St John Street

London E1V 4PY

Tel: +44(0) 208 801 5989 Fax: +44(0) 208 082 5600

Email: [email protected]

www. aila.org.uk

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PROGRAMME SYNOPSIS

Investment Treaty Law and Arbitration

By: Jo. D. Chitlik, Esq. LLM

This programme aims to equip participants with an understanding of the key concepts of investment treaty law and investor-state arbitration as the main dispute settlement mechanism of investment disputes. It will cover the following topics:

Historical Background; Policy Objectives & Issues

The modern day concept of Bilateral Investment Treaties (BITs) comes from three basic international law principles – Diplomatic Protection, Customary International Law & the use of Bilateral Treaties of Friendship, Commerce & Navigation.

While history shows that there were other similar efforts to adopt multilateral frameworks, none proved to be as successful as the BIT. A BITs function is to promote and protect foreign direct investment between the nationals of two contracting States for the further economic development of the host countries. As with most other modern day legal frameworks, BITs arose from the need to have an effective dispute resolution mechanism that is capable of providing solutions to investment disputes.

Most BITs and particularly those most recently drafted or amended, include a dispute settlement mechanism. These special clauses authorize investors to state their claims against the host state, using an international arbitration tribunal, instead of resorting to local courts. It pierces through the concept of State Sovereignty, which has traditionally disallowed any legal action against a government, putting in its place, state responsibility, as well as accountability.

Sources of International Investment Law; State responsibility and the treatment of aliens; Customary International Law and Treaties

Investment treaty arbitration involves a number of different sources of law including the investment treaty, the law of the host State of the investment, the terms of any underlying contract (including the governing law clause) relevant to the investment (if applicable) and general international law.

There were various reasons for the move to treaty standards as the source of protection of foreign investment, including the fact that there were contested standards between developed and developing states regarding the treatment of alien investors and the limits of diplomatic protection as a means of dispute settlement. The position of developed states is that there is an international minimum standard of treatment for the protection of foreign nationals while that of developing States is that aliens were to be treated no worse than their nationals.

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Interpretation of Investment Treaties

The increase in investment dispute claims creates a valuable legal opportunity for treaty interpretation as well as case law. International investment law has been shaped through the contributions made by an array of treaties and the interpretations given to them. Invaluable to the interpretation of investment treaties is the Vienna Convention on the Law of Treaties, which consists of rules of treaty interpretation considered to represent customary international law, including by investment treaty tribunals. As the foundation to this discussion, we find article 31 of the Vienna Convention which reads; “A treaty shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose”.

Threshold Issues

I. Jurisdiction and Admissibility Making a clear distinction between the concepts of jurisdiction and admissibility has been the subject of much legal debate. The ICSID rules are silent, failing to define either of these terms. The only available definition in any law is found in Rule 79 of the International Court of Justice. This in investment arbitration law serves no other purpose than as a mere guideline. To solve this dilemma, practitioners and arbitral tribunals have turned to different legal systems to see how it has been handled. II. Provisional Measures The sharp rise in investment disputes has produced a greater need for the application of provisional measures or interim relief. Provisional measures which can be either in the form of tribunal recommendations or court orders are designed to preserve the rights of the investor until the conclusion of the arbitration process. These requests, which can be submitted by the investor or issued unilaterally by the arbitral tribunal, are characterized by having a sense of urgency or need, designed to prevent further damage or loss of rights to the investor. The measures may vary, depending on the particularities of the case, but are all considered provisional in nature. While the subsequent award, may result to be in line with the initial measure taken, this alone does not automatically give provisional measures a permanent status. It is only the execution of the award that can ultimately convert interim measures’ temporary status to permanent.

III. Definitions of Investment and Investor Investment: There is no model for the definition of investment and BITs for the most part have preferred to use a broad, all-inclusive definition. The ICSID convention wanted to predetermine those disputes that could be settled by arbitral tribunals and made an attempt in Article 25 of the ICSID Convention which reads: “The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment”, but also failed when it did not provide a clear definition of investment. This failure to define such an important term presents both a problem of interpretation and application. Tribunals can only rely on Article 25, the definition contained within the treaty or any domestic investment law. The problem in relation to treaties can easily be overcome. The bigger issue is in regards to domestic investment law when it contains an authorization to settle disputes in ICSID because now we face an issue of determining if the tribunal is competent or not to hear the issue on its merits. Investor: Definition of investor is closely tied to concepts of nationality and is crucial in determining the scope of treaty protection. BITs generally refer to both Natural Persons and Legal Persons. An investor can either be a natural person (any individual acting in his own name) or juridical entities (company or corporation). For the most part, investors prefer to act through legally incorporated entities. Investment claims that wish to use the legal framework of the ICSID convention, establish

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their own standard regarding a person that can qualify for the relief afforded by the specific treaty, based on nationality. In order to determine the nationality of a company we reference international law as well as practice. There is not one fixed set of criteria to make the determination but instead a complex variety of formats that can vary depending on the language of the treaty. The two most common methods used are the place of incorporation or registered office; and the place of central administration or headquarters. IV. Umbrella Clauses An umbrella clause which has also has been referred to as the ‘elevator’, ‘mirror effect’, ‘parallel effect’, and ‘sanctity of contract’ provision is a provision in an investment treaty that guarantees the observation of obligations assumed by the host state vis-à-vis the investor. Such a clause has been used to elevate breaches of contractual obligations in direct agreements between states and investors to the level of a treaty violation. V. Fork-in-the-Road

The relationship between international arbitration and adjudication by domestic courts may be addressed in various provisions of BITs. Some older BITs require the exhaustion of local remedies (Ghana-Romania 1989), others require time efforts before the local courts for a discrete period of time. The typical Fork in the Road provision requires an investor to make a definitive choice between the host State’s domestic courts and international arbitration. Loss of access to international arbitration only applies if the parties and cause of action in the two lawsuits are identical.

Substantive Standards

I. Expropriation The taking away of someone’s personal property is the most severe method of interference. The concept of territorial sovereignty has traditionally allowed and accepted a host state’s right to expropriate a foreign investor’s property. Customary International Law has set a standard in order to protect investors against expropriation by placing a limit on a host State’s sovereignty. As for the BITs, modern day drafting has incorporated specific steps a state must comply with in order to complete the expropriation process and in all cases, the investor retains the right to be fairly and promptly compensated. II. Fair and Equitable Treatment It has become a standard within BITs as well as multilateral investment treaties to include the concept of Fair and Equitable Treatment (FET). The use of this term is not new to public international law; instead it has consistently evolved both in its practical use, as well as interpretation. This principle made its first appearance in the Treaties of Friendship, Commerce and Navigation. Its practical implications today are considerable and can have large financial implications. ICSID claims that have been successful have primarily achieved this alleging that the host country violated FET. III. National treatment principle National Treatment is a principle incorporated into BITs by which a host country extends to foreign investors treatment that is no less favourable than the treatment that it accords to national investors, in like circumstances. Its purpose is to achieve comparative equality and prohibit discrimination against investors or their investment.

The mirage of interpretations regarding the meaning of “no less favourable” and “in like circumstances” had led to a lot of legal discussions. Legal topics, which are too equally broad to

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entertain here, since there, are entire books written on them. Nonetheless the importance is to reiterate that these terms are very much a part of the standard verbiage contained within modern BITs. Even in those cases where a BIT does not contemplate these principles, arbitral tribunals actively seek comparisons in like circumstances.

IV. Most-favoured nation treatment clauses These clauses on the other hand seek to establish equality between the competitive opportunities within a State. They also try to abolish economic distortions between investors of different nationalities and the host country, as well as national investors. The idea is to create a legal framework by which anyone that wants to invest has the confidence that they are contracting in terms that are no less preferential to those that came before them. The concern is however that an overbroad or poorly redacted MFN clause can potentially open the door for claimants to use any of the treaties available between that host country and their investors. Investment Treaty Drafting and Negotiating Drafting any legal document can be as difficult as negotiating its terms. The reason for this is two-fold: (a) the drafter must be able to effectively convey unto paper the conditions of the contract, which is more easily done when the drafter and the negotiator are the same. But prove to be more challenging when they are not, which seems to be the norm, the “assembly line contract”; and (b) be keenly aware that every word within a given contract carries its interpretation. Therefore they must be considered strategically, before being incorporated into an enforceable legal instrument. The negotiation, drafting and future disputes within a BIT are all directly linked to one another, like in a domino effect. While one does not discard the legitimacy of certain investor claims, the reality is that there are also many which could have been curtailed or completely avoided had there been a more efficient drafting of the BIT. Failure to update or renegotiate existing BITs can lead to arbitral awards that can potentially cripple the host state. Renegotiation and Termination of the Investment Treaty I. Renegotiation If a BIT needs improvement, modernization or a complete overhaul of its drafting, ideally the States should be in a position to modify it, either through mutual agreement or because the treaty is up for renewal. While there are States eager to cooperate with each other, the reality is that politics perhaps more than common sense, play a stronger role in determining the parameters of most treaties. II. Termination The standard is that BITs contain some form of termination clause. Among these termination clauses there is considerable variation. Some automatically renew themselves, unless specified to the contrary by either party. Others remain in force indefinitely until one of the contracting parties terminates the treaty, while the best-case scenario stipulates duration for a specific period of time. When dealing with the termination of investment treaties the most crucial point is to effectively determine for how long, after it has been cancelled, will the treaties continue to produce effects. There can be no bigger mistake for any host state than to assume that a termination of an investment treaty automatically terminates the obligations created in favour of existing investors, as well as their right to file an investment claim at ICSID. Likewise it is equally incorrect from the investor’s side to assume that their investment contract is automatically grandfathered indefinitely and the changes do not affect them because neither is the case. BITs usually have what are known as “Survivor Clauses” which mean exactly what they say. They are clauses that are meant to keep alive the effects of the BIT for a specified period of time after the treaty has been terminated or has ended. The terms can vary anywhere from 5-20 years.

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Settlement of International Investment Disputes I. Practice under ad hoc arbitration using UNCITRAL This session looks at the practice and procedures under the UNCITRAL Rules. Many investment treaties allow the investor a choice of which arbitration rules will govern the arbitral procedure. These could be, among others, the ICC, the LCIA, ICSID or UNCITRAL Rules. Unlike the ICC, the LCIA and ICSID, the UNCITRAL is not an arbitral institution. UNCITRAL arbitrations are ad hoc and its Rules do not refer to a standing body but they do allow for the use of an Appointing Authority. All of the services must be organised and paid for by the parties and the arbitrators in UNCITRAL arbitrations. II. ICSID as a self-contained system The International Centre for Settlement of Investment Disputes (ICSID), established in 1966, is an international arbitration institution, created through a multilateral treaty. It is governed by its member states through a secretariat whose function is to oversee operations; these include administrating dispute resolution proceedings, as well as advisory activities. The ICSID system was designed to be self-contained – to operate independently and without relying on or interference from courts – even where a party does not cooperate. Absent agreement otherwise, ICSID process is exclusive, with no right to pursue other remedies once a choice is made to pursue a claim through ICSID. Article 26 is designed to ensure non-interference with the procedure once an ICSID case has commenced. In particular, self-contained procedural rules means no role for courts in appointment or challenge of arbitrators; proceedings; choice of law; provisional measures; review of award. The local procedural law at the seat plays no role and pecuniary obligations of awards must be recognized as if final judgments of State courts and there are no grounds to refuse enforcement of the award. III. How and When to Select an Arbitrator Choosing the right arbitrator in a timely manner is perhaps the biggest factor contributing to a cases success. It is the only phase where the parties’ have complete control over the arbitration process. With that in mind, such an important decision cannot be taken lightly. It requires the parties (particularly the State) to have a complete understanding of the arbitration procedure. They must have both knowledge of the time frame in which to obtain an arbitrator and be able to substantiate that decision based in the proper application of the clause or rule, which applies, to the case. IV. Arbitration Advocacy This session looks at how to prepare for investor-state arbitration. Historically, a large majority of States had little to no experience in conducting this highly specialized form of international litigation. Although in practice substantial work is carried out by external counsel, this method does little to develop the training and experience of government lawyers to achieve the skills needed to become self-sufficient in conducting future cases. States should be committed to develop an In-house legal team to handle investment claims. V. Anti-Suit Injunction An anti-suit inunction is used where one party seeks to derail, delay or even stifle arbitration proceedings by commencing court proceedings in a court, in breach of the arbitration agreement. Both cases must be identical in all their components; the slightest variation will make the use of the injunction inapplicable. The purpose of using an anti-suit injunction is to protect the agreement to arbitrate. Anti-suit injunctions are a live issue in investment treaty arbitration.

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VI. Interpretation and Revision of the Award The window by which to request the interpretation of an award is extremely narrow and technical, making the chances of an award fitting those specific criteria very remote. In practice revisions are seldom requested, in fact ICSID only has information regarding the presentation of three, of which the parties resolved two before the case was ever heard by the tribunal. VII. Annulment and Challenge of Awards and the Recognition and Enforcement of Awards This session looks at the very limited grounds for annulment and challenge of awards and the recognition and enforcement of ICSID awards. The enforcement provision under Article 54 is a distinctive feature of the ICSID Convention. Most other instruments governing international dispute settlement do not cover enforcement but leave this issue to domestic laws or applicable treaties. The ultimate goal in any investment dispute claim is to reach agreement whether through private party negotiations or by the granting of an arbitral award. As discussed, arbitral awards, except on very limited bases cannot be challenged, therefore awards for the most part produce a state of finality. In the end, whether in a court of law or through international arbitration, the parties are just seeking a closure to their dispute. VIII. Perspective of the Arbitrator Arbitrators, like court judges, have the ability to know if counsel is properly prepared and if they are knowledgeable about the facts of the case. From the arbitrator’s perspective, the importance of facts cannot be overstated. Accordingly, Counsel has to be well-prepared to present these before the arbitral tribunal. Counsel has the ability to facilitate the work of the tribunal by equipping them with everything needed to effectively prove the theory of their client’s case. Each party must have a clear and visible legal strategy, which is constantly being updated or developed. This will not only assist the efficiency of the arbitral process, but it will also expedite resolution of the dispute. This session looks at the Arbitrator’s perspective on how best to achieve this. TAILOR-MADE PROGRAMMES AILA also delivers tailor-made programmes designed to meet a party's specific needs in their home country. AILA recognises that different countries have different needs in terms of legal training. Accordingly, AILA is prepared to travel to you with a team of its faculty members to deliver whatever training you need in your time and in your country. AILA is able to design, develop, and deliver tailor-made training to meet your needs wherever you are. To discuss this possibility, please contact us at [email protected]

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APPLICATION AILA strongly encourages early application and reserves the right to cancel any training, conference or seminar if the number of applicants is insufficient. Applicants will be notified of any cancellation in good time. In the event of cancellation of the event, AILA will refund any monies paid towards participation but will not be responsible for any costs associated with preparation for your trip (e.g. visas, plane tickets, hotel accommodation etc.). To apply for a training programme, conference or seminar, complete the relevant application or registration form available from our website at www.aila.org.uk. Each training programme, conference or seminar has different requirements. Accordingly, ensure that you provide all the relevant information requested. Training Programmes Submission of an application form does not guarantee participation. Whilst we value all applications for training programmes, we regret that we will only be able to contact successful candidates. A deposit per successful candidate must be made at least ten (10) working days prior to commencement of a training programme to guarantee participation. The deposit is refundable upon completion of the training. Deposits will not be refunded if you do not attend the training. Conferences and Seminars Upon receipt of your completed registration for a conference or seminar you will receive an acknowledgment via e-mail. Delegate places are only guaranteed once payment has been received. TUITION FEE The fee for each training programme, conference or seminar can be found on our website at www.aila.org.uk. AILA events are designed to be accessible and affordable to low and middle income countries. Accordingly, any fees charged will be proportionate to these countries’ income levels. The fees include any course materials, conference and seminar materials, refreshments, meals and social events at the venue. The fee does not include the cost of airfare, hotel meals and incidentals. It is the responsibility of each participant to ensure that they can cover these expenses.

Cancellation Policy All cancellations must be received in writing at least one month before the event is due to run. Any fees paid will be refunded to you less an administration fee of £50 (GBP). No refund of fees will be possible if cancellations are received less than one month before the event is due to run. Substitutions however can be made at any time. Please advise us of substitutions as early as possible. CERTIFICATION Upon completion of a training programme each participant will be presented with a Certificate of Completion. Successful completion requires that a participant attend all sessions. If a participant misses a number of sessions, AILA reserves the right to withhold certification.

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UPCOMING EVENTS

Lunch seminar with Meg Kinnear of ICSID in New York

The purpose of this seminar is to extend AILA's training to other developing countries closer to the US than to the UK, and to invite experts in investment treaty law and investment arbitration to participate in delivering the training.

When: 17 January 2013

Time: 12:00 p.m. – 2:30 p.m. (A Sandwich lunch will be served from 12:00 p.m. – 1:00 p.m.)

Venue: King & Spalding LLP, 1185 Avenues of the Americas Conference Centre, New York, NY 10036

Fee: Participation is free but registration is strictly required. Please register by emailing [email protected] specifying your Name, Organization, Position, Address, Telephone and Email by no later than 16 January 2013. The number of places is limited and will be allocated to on a first-come-first-served basis

Who should attend:

Government officials, State Attorneys, officers of the foreign office and finance departments, private practice lawyers, and investment dispute practitioners wishing to form part of the US based AILA Faculty.

Investment Treaty Arbitration Training, Johannesburg

When: 11 – 14 March 2013

Venue: University of Witwatersrand, Johannesburg

Fee: Members Early Bird Registration (on or before 28 Jan 2013) £355.00 Members late registration fee (on or after 28 Jan 2013) £405.00 Non-Members Early Bird Registration (on or before 28 Jan 2013) £405.00 Non-Members late Registration (on or after 28 Jan 2013) £465.00

Who should attend:

Government officials, State Attorneys, academics, private practice lawyers, and investment promotion practitioners

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FEEDBACK

To help improve our services and their delivery, we receive and encourage feedback from our participants, members, faculty and advisory board. This ensures that the training programmes and other services we provide to ours members and participants are relevant, cost effective, efficient and consistent with current best practice. This not only instils in members of AILA, and potential users of its services, confidence in AILA’s services but also ensures that satisfied users feel happy to recommend AILA’s services. Our most valuable feedback comes from the participants themselves. Each participant completes an evaluation form for each session. The evaluations provide a basis for improvement and the result is a constant update of the programmes and the sessions to ensure that we are addressing your needs. Some feedback can be viewed at http://www.aila.org.uk/#/testimonials/4569298735

September 2012 Participants

—— ensuring participation in the global legal community ——

Outstanding AILA short-listed for Prestigious Legal Awards

The outstanding achievements of AILA’s work have been recognised by the judges of the most prestigious awards in the legal calendar.

In the short period since its inception AILA has been short-listed for awards by three separate legal institutions. These are the the Global Arbitration Awards 2012 in the category of Contribution to Best Practice, the Law Society's Excellence Awards 2012 in the category of Equality and Diversity and the British Legal Awards 2012 in the category of CSR/Programme of the Year.

Rukia Baruti, Managing Director says…

“We are very honoured to have been shortlisted for these Awards in 2012. It is fantastic to be recognised for work we enjoy doing. We are extremely grateful and appreciative of everyone’s continued support.”

Africa International Legal Awareness Suite 15124

Lower Ground Floor 145-157 St John Street

London EC1V 4PY www.aila.org.uk

AILA Brochure

Documents

Transcript of AILA Brochure