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The Profectional Newsletters
20 August 2018

International Arbitration
and Foreign Investment:
Principles and Practice
#

Treatment
of Foreign Investment:
International Perspectives
#

International Arbitration and Foreign Investment: Principles and Practice Treatment of Foreign Investment: International Perspectives

by
Prof. Julien Chaisse,
Professor,
The Chinese University of Hong Kong

by
Prof. Julien Chaisse,
Professor,
The Chinese University of Hong Kong

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Code: EVT000000254 Code: EVT000000255
Date: 3 September 2018 (Monday) Date: 7 September 2018 (Friday)
Time: 14:30 - 17:45
(Reception starts at 14:00)
Time: 09:30 - 12:45
(Reception starts at 09:00)
Venue: Kornerstone Institute
15/F, Hip Shing Hong Centre
55 Des Voeux Road Central
Central, Hong Kong
Venue: Kornerstone Institute
15/F, Hip Shing Hong Centre
55 Des Voeux Road Central
Central, Hong Kong
Level: Intermediate Level: Intermediate
Language: English Language: English
Accreditations: LSHK CPD Points being applied for
SFC 3.0 CPT Hours
Accreditations: LSHK CPD Points being applied for
SFC 3.0 CPT Hours
Admission: Standard Fee: HK$1,780.00
Advanced Booking: HK$1,480.00
(on or before 20 August 2018)

Please call 2116 3328 for details
and Group Discount
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Prof. Julien Chaisse

Julien Chaisse is Professor at The Chinese University of Hong Kong (CUHK), Faculty of Law.  He is an award-winning scholar of international law with a special focus on the regulation and development of economic globalization.  His teaching and research include international trade/investment law, international taxation, law of natural resources, and Internet law. Prior to joining CUHK in 2009, Dr. Chaisse was a senior research fellow at the World Trade Institute (Switzerland).  He also held an appointment as lecturer at elite school Sciences Po Aix (France) and served as a diplomat at the Embassy of France in New Delhi (India).

Dr. Chaisse is frequently invited to lecture at many academic institutions and leading universities around the world, including Columbia University (U.S.), University of Oxford (U.K.), Melbourne University (Australia), Tokyo University (Japan), and Tsinghua University (China).  Dr. Chaisse has published numerous well-regarded and widely-cited books and articles, such as "The Regulation of Global Water Services Market", Cambridge University Press (2017); "International Economic Law and Governance", Oxford University Press (2016); "Shareholder Protection Reloaded", Stanford Journal of International Law (2016); "Navigating the Expanding Universe of International Treaties on Foreign Investment", Journal of International Economic Law (2015); "Maintaining the WTO's Supremacy in the International Trade Order", Journal of International Economic Law (2013); and "Promises and Pitfalls of the European Union Policy on Foreign Investment", Journal of International Economic Law (2012).

In recognition of his outstanding academic performance, Dr. Chaisse received the CUHK Vice-Chancellor's Exemplary Teaching Award in 2015 and the CUHK Research Award in 2012.  Dr. Chaisse has held the appointment of Director of the Centre for Financial Regulation and Economic Development at CUHK Law since 2013, and has established forward-looking legal projects and events at CUHK, including the series of "Asia FDI Forum", which has become the most prominent conference on foreign investment regulation in Asia.

In addition to his professorship, Dr. Chaisse is a well-experienced arbitrator and a leading consultant to international organizations, governments, multinational law firms, and private investors.  He is also member of some of the world's foremost organizations, including the World Economic Forum's International Trade and Investment Council and the Internet Corporation for Assigned Names and Numbers (ICANN) in which Dr. Chaisse serves on the Working Group on gTLDs' rights protection mechanisms review and the Accountability and Transparency Review program.

Course Outline:

Investment arbitration is a procedure to resolve disputes between foreign investors and host States (also called Investor-State Dispute Settlement or ISDS).  The possibility for a foreign investor to sue a host State is a guarantee for the foreign investor that, in the case of a dispute, it will have access to independent and qualified arbitrators who will solve the dispute and render an enforceable award.  This allows the foreign investor to bypass national jurisdictions that might be perceived to be biased or to lack independence, and to resolve the dispute in accordance to different protections afforded under international treaties.  For a foreign investor to be able to initiate an investment arbitration, a host State must have given consent to this.

Consent to investment arbitration is most commonly given by host States in International Investment Agreements (IIA’s), including Bilateral Investment Treaties (BIT’s) as well as Free Trade Agreements (FTA’s) and multilateral agreements, e.g., The Energy Charter Treaty (ECT).  Less frequently, consent to investment arbitration may be found in investment agreements concluded directly between a State and a foreign investor, or it may be contained in a domestic law of the host State, such as a mining or investment law.  The United Nations’ UNCTAD maintains a list of the vast majority of instruments providing for a host State’s consent to investment arbitration, which should be consulted at the outset of any potential dispute to see whether investment arbitration may be envisaged.

This course reviews the main conditions, steps and actors in the practice of investment arbitration.

In this course you will have an opportunity to explore recent developments of key issues such as:

  • Consider why arbitration is often viewed as an attractive alternative to litigation in domestic courts
  • Identify the drawbacks to litigating in either home or host state courts
  • Identify the advantages investor-state disputes settlement holds over state-state dispute settlement
  • Identify the various sources for consent to an investment arbitration
  • Review the identity of the most frequent defendants in investment cases
  • Learn about "fork-in-the-road" clauses
  • Consider the potential overlap between domestic causes of action and international investment law claims
  • Examine the waiver of the exhaustion-of-local-remedies rule
  • Consider the relationship between choice-of-forum clauses in contracts and the referral to arbitration under an investment treaty
  • Consider the advantages of international arbitration vs. national courts

Course Outline:

The 'treatment of foreign investment' is defined as "the set of principles and rules of international law as national law governing the regime of international investment, since the moment of its formation until its liquidation".  An initial distinction can be made, according to UNCTAD, between the general standards of treatment, that is to say, the standards for all aspects of the existence of a foreign investment in a host country, and specific standards processing that refer to particular aspects.  The general standards of treatment found systematically in a bilateral agreement include absolute norms and standards.  This generally means that the absolute standards are those that set out the treatment to be given.

The standards are the standards that define the required treatment by reference to the treatment accorded to other investments.  However, it should be noted that "absolute" terms and "relative" terms are not universally accepted.  Thus, this classification, mainly initiated and used by UNCTAD, has no legal implication.  Generally, bilateral treaties can therefore include several provisions on absolute standards for the treatment to be accorded.  BITs provide several clauses that are part of the absolute standard of treatment accorded to investments.  These provisions for the FET, full protection and security, the prohibition of arbitrary or discriminatory measures and treatment in accordance with international law, and one or more provisions relating to the treatment.  BITs use two different terms in order to prevent the discriminatory treatment of investments.  These are the MFN clause and the standard of national treatment (NT).

This course discussed the applicability of these two types of treatment in bilateral treaties, as well as exceptions to these two treatment standards.

In this course you will have an opportunity to explore recent developments of key issues such as:

  • Identify the components of the standard of national treatment
  • Understand the importance of identifying the comparator
  • Assess the importance of the requirement that the comparators be in "like circumstances"
  • Consider the relevance of WTO jurisprudence to the investment context
  • Evaluate whether "most-favoured-nation" treatment operates to bring in more favourable dispute settlement options as well as more favourable substantive treatment
  • Evaluate the "exceptions" to MFN proposed by the Maffezini tribunal
  • Learn what factors distinguish the international minimum standard from fair and equitable treatment
  • Consider what level of government conduct is required by the international minimum standard today
  • Discuss the advantages of the NAFTA Interpretation Process
  • Discuss the disadvantages of the NAFTA Interpretation Process
  • Identify the factors that should guide a fair and equitable treatment analysis
  • Study the scope of the full protection and security standard

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