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International Arbitration: Evolution of Devolution?
Symposium on November 15 and 16, 2023
The Center on International Commercial Arbitration at AUWCL (the Center) hosted the Symposium on Salient Issues in International Arbitration under the theme "International Arbitration: Evolution or Devolution?" On November 15 and 16, thirty researchers from twelve countries came to Washington, D.C., to discuss their research on current trends in international commercial and investment arbitration. The Symposium was led by Professors Horacio A. Grigera Naón, Director of the Center and Independent International Arbitrator, and Krista Nadakavukaren, Vice-Director of the Swiss Institute of Comparative Law in Lausanne. Professor Bjorn Arp, Assistant Director of the Center, coordinated the event.
On Wednesday, November 15, the Permanent Representative of Ecuador to the United Nations Security Council, Ambassador Hernan Pérez Loose, delivered the keynote address to the Symposium attendees. He provided insights into the Security Council’s practice regarding economic sanctions and how arbitral tribunals have been affected by them. He particularly elaborated on the Sofregaz case, where the French Cour d’Appel held that unilaterally imposed economic sanctions, like those from the U.S. targeting Iran, were not part of international public policy. Instead, only sanctions adopted by the UN Security Council would be part of the international public policy, potentially leading to the setting aside of awards made in disregard of such sanctions.
The researchers and practitioners who participated in the Symposium presented their research in six panels: three on investment arbitration, two on commercial arbitration, and one on climate change and its impact on arbitration practice.
The three panels on investment arbitration debated the transformations that ISDS is currently undergoing, comparing experiences from Asia, Europe, and the Americas. The panelists discussed third-party funding, noting that the various regimes available do not satisfy all the requirements and demands of a modern ISDS system, whether they are more transparent or more restrictive. More discussion and innovative proposals are needed to effectively respond to the needs of arbitrators and parties and to understand the interests involved in a case. Another extensively debated issue was duplicate or parallel proceedings. One panelist compared the WTO with the ISDS mechanisms, exposing the contradictions that have become noticeable through the lack of results in practice. This is especially apparent in the areas of independence and impartiality of the adjudicators, as well as the procedural timetable for arriving at a final solution to the dispute in the WTO and ISDS contexts.
The two panels on commercial arbitration highlighted interesting comparisons of the arbitrability of antitrust disputes, which continues to be a topic of concern in the European Union, and the support of local courts in discovery requests, which has been an issue in recent U.S. Supreme Court jurisprudence. Two panelists addressed the practice of Latin American courts, offering differing views on whether the region has really become open to arbitration or not. Another panelist explained that the practice in India shows positive developments in favor of enhanced recognition of arbitration, which needs to be further solidified in the future.
The panel on Climate Change discussed opportunities for international arbitration as the preferred dispute resolution mechanism for companies in the renewable energy sector and other sustainable or "green" industries. The panelists reminded the audience that under the Energy Charter Treaty, most disputes were in the field of renewable energy. According to some panelists, this extensive practice could lead to the formulation of a new "Lex Climatica." However, the panelists were also aware of the potential challenges posed by states that are hesitant to promote a change that is too quick and disruptive to their domestic legal systems.