This thought-provoking discussion on ‘Compliance with Investment Awards’ took place on Thursday 2 December 2021. The event built on an extensive study on the topic of ‘State Compliance with Investment Awards’ (Emmanuel Gaillard and Ilija Mitrev Penushliski, ICSID Review 35(3), 2020, pp. 540-594).
The programme of the event has been set out below, and you can use the markers in the play bar above to jump straight to the part of the programme of interest to you. Below the programme you will find a list of the references cited during the webinar, and additional reading materials. Short speaker bios follow. Kindly note that the views expressed during the event were personal to the speakers and not representative of their respective firms or organisations.
WELCOME & INTRODUCTION
Ilija Mitrev Penushliski, Counsel, Three Crowns (Paris)
Hafez Virjee, President, Delos Dispute Resolution (London, Paris)
COMPLIANCE, NON-COMPLIANCE, AND THE FUTURE OF INVESTMENT PROTECTION – POLICY CONSIDERATIONS
Professor Andrea Bjorklund, McGill University (Montreal)
Roberto Echandi, Investment Policy Global Lead, World Bank (Washington D.C.)
Dyalá Jiménez, independent arbitrator and former Minister of Foreign Trade, Costa Rica (San José)
Goran Jutriša, Deputy Secretary-General, Government of Croatia (Zagreb)
Moderator: Ilija Mitrev Penushliski, Counsel, Three Crowns (Paris)
NON-COMPLIANCE – LEGAL AND STRATEGIC ISSUES
Jacques-Alexandre Genet, Partner, Archipel (Paris)
Ros Prince, Partner, Stephenson Harwood (London)
Luke Sobota, Founding Partner, Three Crowns (Washington D.C.)
Dr Stephan Wilske, Partner, Gleiss Lutz (Stuttgart)
Moderator: Laurie Achtouk-Spivak, Counsel, Cleary Gottlieb Steen & Hamilton (Paris)
References cited during the Welcome & Introduction
- The study on ‘State Compliance with Investment Awards’ by Prof. Emmanuel Gaillard and Ilija Mitrev Penushliski
- Delos’s Compliance Reinforcement Mechanism
- Council of Europe, Department for the Execution of Judgments of the European Court of Human Rights
References cited during the First Panel, on Compliance, Non-Compliance, and the Future of Investment Protection – Policy Considerations
- Cases involving Croatia
- PCA Case No. 20212-04 between the Republic of Croatia and the Republic of Slovenia
- Georg Gavrilović and Gavrilović d.o.o. v Republic of Croatia, ICSID Case No. ARB/12/39: case documents on ITA Law; GAR article (requires a paid subscription)
- Cases involving Costa Rica
- UNCTAD, Investment Policy Hub – Cases where Costa Rica has appeared or appears as Respondent State
- TECO Guatemala Holdings LLC v. Republic of Guatemala, ICSID Case No. ARB/10/23: case documents on ITA Law
- Argentine defence of necessity: see, for example, on Practical Law
- Investor-State conflict management mechanisms: concept and empirical data
- Roberto Echandi, “Straightening the Purpose of International Investment Law: from Litigation to Consolidation Relationships. The Role of Investor-State Conflict Management Mechanisms” (USTLJ, 2021)
- Retention and Expansion of Foreign Direct Investment (Vol. 2): Political Risk and Policy Responses, World Bank Group (2019)
- Additional reading
- Andrea K. Bjorklund, Lukas Vanhonnaeker, and Jean-Michel Marcoux, State Immunity as a Defence to Resist the Enforcement of ICSID Awards, 36 ICSID Review – Foreign Investment L. J. 1 (2021)
- Andrea K. Bjorklund, Sovereign Immunity as a Barrier to the Enforcement of Investor-State Arbitral Awards: The Re-politicization of International Investment Disputes, 21 Am. Rev. Int’l Arb. 211 (2010)
Relevant case law cited during the Second Panel, on Non-Compliance – Legal and Strategic Issues
- Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania [I], ICSID Case No. ARB/05/20: case documents on ITA Law
- First National City Bank v. Banco Para El Comercio Exterior De Cuba, 462 U.S. 611, decided 17 June 1983 (for when a State-owned entity is considered to be the alter ego of the State)
- Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2: case documents on ITA Law
- Mohamed Abdulmohsen Al‐Kharafi & Sons v. the Libyan Investment Authority, ECJ: GAR article (requires a paid subscription)
- Judgment of the English High Court ( EWHC 1723) in relation to Unión Fenosa Gas, S.A. v. Arab Republic of Egypt, ICSID Case No. ARB/14/4: see on Jus Mundi
- Société nationale des pétroles du Congo (SNPC) v. Commissions Import Export (Commisimpex), Versailles Court of Appeal, 14 January 2021, No. 19/06572 (the decision was not appealed to the French Court of Cassation): GAR article (requires a paid subscription)
- General Dynamics United Kingdom Ltd (Respondent) v State of Libya (Appellant),  UKSC 22: GAR article (requires a paid subscription)
ABOUT OUR SPEAKERS
Laurie Achtouk-Spivak is a counsel based in the Paris office of Cleary Gottlieb Steen & Hamilton. Her practice focuses on international arbitration and litigation, with a particular emphasis on public international law. Ms. Achtouk-Spivak represents investors and sovereigns in investment treaty arbitrations before ICSID as well as other arbitration institutions. She has also represented clients in several commercial arbitrations including some involving sovereigns and often provides companies with investment structuring advice. She also frequently advises and lectures on sustainability matters, and runs capacity building programs. Ms. Achtouk-Spivak is a lecturer at the University of Poitiers, where she teaches a course in investor-State dispute settlement. She is widely published on public international law, notably investment treaty arbitration and is a member of the ICC Commission on Arbitration and ADR, as well as the ICC Task Force on “Addressing Issues of Corruption in International Arbitration.” Ms. Achtouk-Spivak is a member of the bar in New York (US) and Paris (France) as well as a member of the Peer Review Board of the ICSID Review, and the co-director of the prestigious Cahiers de l’arbitrage annual investment case law review. She has consistently been recognized by Who’s Who Legal and is commended by a peer as “probably the best up-and-coming investment arbitration specialist in Paris and beyond.” She is also recognized as a “Rising Star” by Legal 500 EMEA, Legal Media Group Expert Guides and was shortlisted for the Euromoney Women in Business Law Awards 2021.
Andrea K. Bjorklund is the Associate Dean of Graduate Studies, as well as a Full Professor and the L. Yves Fortier Chair in International Arbitration and International Commercial Law, at McGill University Faculty of Law. She acts as arbitrator and expert in both investment and commercial arbitrations and as an expert in court proceedings related to arbitration. She is on the panel of arbitrators of the Beijing Arbitration Commission/Beijing International Arbitration Center, the International Commercial Arbitration Court of the Ukrainian Chamber of Commerce, and Industry, and AAA’s International Centre for Dispute Resolution. She is also a U.S. appointee to the NAFTA Chapter 19 (and USMCA Chapter 10) roster of arbitrators. In addition to serving as an adviser to the American Law Institute’s project on restating the U.S. law of international commercial arbitration, she is a member of the Advisory Board of the Investment Treaty Forum of the British Institute for International and Comparative Law. Professor Bjorklund was the inaugural ICSID Scholar-in-Residence from 2014-2015 and was Editor-in-Chief of the Yearbook on International Investment Law and Policy from 2012- to 2015. Professor Bjorklund is widely published in investment law and dispute resolution. Before entering the academy she was an attorney-adviser on the NAFTA arbitration team in the Office of the Legal Adviser of the U.S. Department of State, in addition to periods at the U.S. International Trade Commission and in private practice at Miller & Chevalier in Washington, D.C. Professor Bjorklund has a J.D. from Yale Law School, an M.A. in French Studies from New York University, and a B.A. (with High Honors) in History and French from the University of Nebraska.
Roberto Echandi is a Lead Trade Specialist in the Trade Unit of the Macroeconomics, Trade and Investment Global Practice of the World Bank Group (WBG). From this position, his current work program focuses on research and policy advice on issues related to cross border trade in services, negotiation, implementation and maximization of potential benefits of Economic Integration Trade Agreements. Prior to joining the trade unit, he was the Global Lead for Investment Policy and Promotion of the Trade and Competitiveness Global Practice of the WBG. Prior to joining the WBG, he was Director of the Program on International Investment at the World Trade Institute (WTI) of the University of Bern, where he continues to be part of the Advisory Board and Faculty of visiting professors. He is also member of the Editorial Board of the Journal of World Investment and Trade (JWIT), and Adjunct Professor of the Institute of International Studies at the National University of Malaysia. Dr. Echandi was Costa Rica’s Ambassador to Belgium, Luxembourg and the European Union from 2007 to 2010. During the same period, he was also Chief Negotiator for the Association Agreement negotiations between the EU and Central America, where he led the negotiation process on behalf of Costa Rica and in many occasions for the whole Central American region. From October 2002 until January 2005, he also served as Special Adjunct Ambassador for U.S. Trade Affairs and lead negotiator in services and investment in the US-Central America Free Trade Agreement (CAFTA). Among other positions in academia and international organizations, Dr. Echandi has also been Faculty of the master’s in international Economic Law (IELPO) at the University of Barcelona, member of the Editorial Board of the Journal of International Economic Law (JIEL), Adjunct Professor at the Georgetown University Law Center, Contributor Expert of the Latin American Program of the Baker Center at Rice University, and Legal Affairs Officer of the WTO Appellate Body Secretariat. For more than 15 years, Dr. Echandi led Costa Rican delegations to multiple trade and investment bilateral and regional negotiations and was been heavily involved in domestic policy reforms to ensure implementation of international trade and investment agreements in Costa Rica. Roberto Echandi has a Ph.D in international law from the University of Bern, an LL.M. from the University of Michigan School of Law at Ann Arbor; an M.Phil. in Latin American studies with emphasis in economic integration at the University of Oxford; a Licenciatura en Derecho from the University of Costa Rica, and studies at the JFK School of Government of Harvard University.
Jacques-Alexandre Genet is a partner in the Paris office of Archipel. He has world-class expertise in sovereign debt, international enforcement, asset tracing and interim measures. He also advises international businesses on issues arising from doing business in France (company law, tax, immigration, labour laws), the Middle East and Africa (international sales contracts, distributorship/agency agreements, OHADA law, etc.), including in distressed contexts. He is listed in Who’s Who Legal as a Global Leader in Asset Recovery. Jacques-Alexandre is a graduate of Sciences Po Paris, where he majored in economics and finance. He graduated in French law and English & American business law at University Paris X-Nanterre. He lectured at the Sorbonne (University Paris 1 Panthéon-Sorbonne). Jacques-Alexandre practices in French, English and Spanish.
Dyalá Jiménez is a Costa Rican national and specializes in international arbitration. Dyalá is frequently appointed as arbitrator in institutional and ad hoc arbitrations, both in commercial and investor-State matters. She is a member of the panel of arbitrators and conciliators for Costa Rica before the ICSID and member of the ICC International Court of Arbitration. Dyalá has been recognized by Who’s Who Legal and Chambers & Partners. She has a list of numerous publications and has taught in various universities, both in Costa Rica and Chile. Dyalá served as Minister of Foreign Trade of Costa Rica from July 2018 to August 2020 and is member of the Board of the Costa Rican Chamber of Commerce. Dyalá Jiménez works mainly in Spanish and English but is fluent in French and Portuguese.
Goran Jutriša has been the Deputy Secretary-General of the Government of the Republic of Croatia since 2020. Prior to his current role, he acted in other capacities as a Croatian government official since 2015. Prior to that, Goran has also worked in well-known law firms in Croatia and the United States. Goran holds a Bachelor of Laws from the University of Zagreb, a Master of Arts in Law and Diplomacy from Tufts University and an LL.M. from Harvard Law School. Goran is fluent in Croatian and English and has a conversational level of German.
Ilija Mitrev Penushliski is counsel in the Paris office of Three Crowns LLP. Ilija has represented clients in international arbitrations conducted under all major arbitration rules. His practice focuses on complex investment and commercial arbitrations, particularly in the energy sector. He has extensive experience with proceedings for the annulment and enforcement of arbitral awards in numerous jurisdictions. Ilija has also advised clients in relation to the renegotiation of bilateral investment treaties and on public international law issues, more generally, including on immunities, the law of the sea, and international criminal law. Ilija is featured in Who’s Who Legal 2020 and 2021 – Arbitration as a Future Leader, which hails him as “one of the most outstanding legal minds of his generation”, someone who “knows the cases inside out”, and a “’truly remarkable’ arbitration lawyer who ‘has an impressive ability to manage very complex cases and to develop strategy’.” Ilija holds an LLM from Harvard law School, a Magister Juris from the University of Oxford, and an LLB from Saints Cyril and Methodius University.
Ros Prince specialises in high value fraud and asset recovery litigation, and is head of the market leading fraud and asset recovery team of Stephenson Harwood. She has extensive experience of obtaining and defending injunctions, including freezing orders and search orders. Chambers & Partners’ global Asset Tracing & Recovery guide ranks her as one of just 12 leading lawyers in the world. Both The Legal 500 and Chambers UK list her as a ‘Leading Individual’, with The Legal 500 2020 describing her as “a standout fraud litigator with superb international experience”. She is a solicitor-advocate with full rights of audience before the English High Court. Ros’ expertise is highly regarded internationally, and she has been asked to speak on fraud and asset recovery related topics at events organised by the United Nations, the Commonwealth Secretariat, and a number of governments.
Hafez Virjee is the President and a co-Founder of Delos. Hafez also serves as an independent arbitrator at Virjee Arbitration. He previously acted mainly as counsel. His clients have spanned the range of listed companies, private equity firms, tech start-ups, industrial concerns, State entities and treaty organisations, in disputes across a wide range of sectors and relationships, including shareholder agreements, joint-ventures, agency, M&A, telecommunications, tech, energy, pharmaceutical, construction and defence. Hafez is a solicitor of England & Wales and also qualified in France. He was previously at Dechert in Paris (with a secondment to Dubai in 2015) and prior to that at Freshfields Bruckhaus Deringer in London. He co-edits the Delos Guide to Arbitration Places (GAP) and regularly writes and speaks on international arbitration and legal risk management. He holds degrees from the University of Cambridge (M.A.), the Université Paris II – Panthéon-Assas (Maîtrise) and the University of California – Berkeley (LL.M.). He is listed among the Future Leaders of Arbitration by Who’s Who Legal.
Dr Stephan Wilske advises national and international clients on arbitration and cross-border litigation. He has acted in numerous arbitrations (national and international) with an emphasis on project-related disputes, post-M&A disputes, joint ventures, investment arbitrations and general commercial law. Stephan studied at the Universities of Tübingen, Aix-en-Provence (Maîtrise en Droit 1986) and Chicago (LL.M.; Casper Platt Award 1996). He was admitted to the German bar in 1997 and has been a partner at Gleiss Lutz since 2002. He was admitted in New York and in Germany in 1997, to the U.S. Court of Appeals for the Federal Circuit in 2007, to the U.S. Supreme Court in 2009 and to the U.S. Court of Appeals for the Second Circuit in 2010. Stephan has been an international advisor to the Korean Institute of Technology and the Law (KITAL) since 1999, Advisory Committee Member of the Swiss Arbitration Academy (SAA) since 2008, Senior Committee Member of the Contemporary Asia Arbitration Journal since 2009, International Correspondent (Germany) of the Revista Română de Arbitraj (Romanian Arbitration Review) since 2009 and a member of the Editorial Board of ARBITRATION – The International Journal of Arbitration, Mediation and Dispute Management (since 2018). He has also been a member of the SIAC Users Council since 2016. Stephan has been a lecturer at the University of Heidelberg since 2008 and at the University of Jena since 2015. In Spring 2010, he was a Visiting Professor at the National Taiwan University College of Law. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb) and of the Asian Institute of Alternative Dispute Resolution (AIADR), a member of the Expert Panel of Neutrals of the Mediation and Conciliation Network (MCN) India and of the American Law Institute (ALI). Since 2019, he is a Vice President of the CAAI Court of Arbitration and a member of the ICC Task Force “Addressing Issues of Corruption in International Arbitration”. Since June 2021, he has been a member of the International Arbitration Committee of the KCAB International.