Brooke s guven Columbia center on sustainable investment April 21 2020 Scoping Study Available On WGIII Website Working Paper 196 Submission from the Governments of the Netherlands Peru and Thailand ID: 934230
Download Presentation The PPT/PDF document "Securing Adequate Legal Defense in Proce..." is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Slide1
Securing Adequate Legal Defense in Proceedings under International Investment Agreements
Brooke s. guvenColumbia center on sustainable investmentApril 21, 2020
Slide2Scoping Study Available On WGIII Website
Working Paper 196 (Submission from the Governments of the Netherlands, Peru, and Thailand)
Executive Summary will be available in all UN languages
Full Scoping Study is available in English
Slide3Interviews Conducted for Scoping Study
Government officials (of all World Bank Group economic development levels)Individuals who have experience establishing or working for existing or attempted Assistance MechanismsIndividuals who have experience working for
arbitral institutions
Academics
who have written or advised states on international investment law
Private practitioners
Representatives of
civil society organizations
Representatives of
private sector multinational investors
Slide4Issues Addressed in Scoping Study
Capacity challenges: What kind of capacity are states seeking? Lessons learned: Previous attempts to establish an international investment law advisory center Models:
What could an investment law assistance mechanism look like?
Cross-cutting themes:
Key issues that policy-makers should consider
Investors:
As assistance mechanism beneficiaries
Annex A: Consultation protocol
Slide5Capacity Challenges Considered in Scoping Study
Policy-making and Pre-dispute ManagementInvestment policy-makingTreaty negotiation Domestic implementationDispute prevention Ongoing treaty management
Pre-dispute management
Dispute management
Case Staffing
Anticipating and potentially resolving disputes
Appointing Arbitrators
Dealing with uncertainty and ambiguity
Working with experts
Discovery and information management
Slide6ISDS Case Staffing
Select capacity challengesHow states wish to internally staff depends on frequency of ISDS claimsThree models: Hybrid (internal staff; outside counsel)In-house staff
Outside counsel
Few countries have a dedicated agency
How states address this issue
Some states feel compelled to hire the best counsel because officials and the state need to defend that choice in case of loss
Some states do not have or choose not to allocate funds to top counsel
Research suggests that developing countries are more willing to settle even unmeritorious claims
Slide7Previous Efforts to Establish an IIL Advisory Center
UNCTAD-IADB-OAS-VCCUnion of South American Nations (UNASUR)Australia-New Zealand and Association of Southeast Asian Nations (ANZ-ASEAN)
Key take-away:
Do not underestimate large (e.g. financing) or small (e.g. location) policy differences and objectives among states as unanticipated differences of opinion can halt or stall efforts, even when the finish line seems near
Slide8Potential Models
Slide9Institutionalized, multi-service support including legal representation
Advisory Center on WTO Law (ACWL)African Legal Support Facility (ALSF)International Development Law Organization’s Investment Support Program for Least-Developed Countries (ISP/LDCs)
Capacity Building
Negotiation Support
Policy Advice
Legal Opinions
Defense
Slide10ACWL – Overview of Activities
Slide11ACWL – Fees and costs for assistance in WTO disputes
Hourly and maximum total charge to complainants and respondents in WTO panel proceedings
Slide12ACWL as a model? WTO and ISDS compared
WTO and ISDS disputes have similarities, but also differences, e.g., as shown in this table:hourly and maximum total charges to complainants and respondents in WTO panel proceedings compared to ISDS proceedings
Slide13Institutionalized, multi-service support (no legal representation)
International Organizations (UNCTAD, OECD, World Bank)Arbitration Centers Academic institutionsNon-profit organizations
Capacity Building
Negotiation Support
Policy Advice
Slide14Financial and In-Kind Support
Permanent Court of Arbitration Trust Fund (available for ISDS claims before the PCA)Trust funds used to support defense in other legal fields (e.g. International Criminal Court)Market mechanisms (third-party funding, insurance, contingency fees)
Litigation/Arbitration Trust Funds
Third-party Funding
Contingent Fee Representation
Slide15Other models described in the Scoping Study
Pro-bono, ad hoc legal and expert supportIDLO ISP/LDCsIntergovernmental Knowledge-Sharing HubsDiscrete Capacity-Building Networks International OrganizationsArbitral Institutions
Academic Centers
Law Firms
Legal Assistance and Resource Clearinghouse
Slide16Cross-cutting issues applicable to all models
Quality, reliability, reputation, trustFunding and scope of servicesCosts – who pays?Conflicts of interest and tensionsWho benefits?Location, staffing, remuneration
Long-term sustainability
Institutionalized vs. Ad hoc
“Politics”
Intersection with other reforms
Slide17Considerations around investors as beneficiaries
Nature and scope of concerns that an Assistance Mechanism is intended to addressChallenges that investors face when investing abroadOptions for addressing investor challengesStrong differences of opinion on whether investors should be included as beneficiaries
Slide18Thank you!
Brooke S. GuvenColumbia Center on Sustainable Investment
Brooke.Guven@law.columbia.edu