BCDR-AAA Pays Tribute to Francisco Orrego Vicuña
2 October 2019
The Bahrain Chamber for Dispute Resolution (BCDR-AAA) was a co-sponsor of a recent commemoration of Professor Francisco Orrego Vicuña a year after his death.
The events marking this occasion were held in London, the city in which Professor Orrego obtained his doctorate, served as Chile’s ambassador, and often acted as an international arbitrator. Organized by Professor Orrego’s family, with the Chilean Ministry of Foreign Affairs, Heidelberg University’s Center for Latin America, the Department of Law of the London School of Economics and Political Science (LSE), the law firm Baker Botts LLP, and BCDR-AAA, the events comprised a memorial service on 1 October 2019 at St. James’s Church, Spanish Place, presided over by the Apostolic Nuncio to Great Britain Monsignor Edward J. Adams, and a symposium the following day in the Shaw Library at LSE.
The symposium began with welcome addresses from Dr. Jan Kleinheisterkamp, an associate professor of law at LSE, and H.E. Mr. David Gallagher, Chile’s ambassador to the United Kingdom. They were followed by five panel discussions celebrating the legacy of Professor Orrego and the contribution he made to international law in the numerous distinguished positions he held – judge ad hoc of the International Court of Justice, judge ad hoc of the International Tribunal of the Law of the Sea, president of the World Bank Administrative Tribunal, judge of the International Monetary Fund (IMF) Administrative Tribunal, international arbitrator and mediator, scholar, teacher, and academic.
The symposium attracted renowned international jurists, academics, and diplomats from many countries, including Argentina, Bahrain, Chile, France, Germany, Italy, Lebanon, the Netherlands, Scotland, Spain, and the USA. Among the speakers were Dame Rosalyn Higgins GBE QC, former president of the International Court of Justice; Sir Christopher Greenwood GBE CMG QC, former judge of the International Court of Justice; Dr. Mahnoush Arsanjani, judge of the World Bank Administrative Tribunal; Sir Michael Wood KCMG, member of the International Law Commission and barrister at Twenty Essex chambers; Professor Juan Fernández-Armesto, arbitrator, partner at Armesto & Asociados, and a vice-president of the governing board of the International Council for Commercial Arbitration (ICCA); as well as several law professors, barristers, and ambassadors and officials of the Chilean Ministry of Foreign Affairs.
Click here to see the full program of the symposium.
BCDR-AAA’s CEO Professor Nassib G. Ziadé chaired the fifth and last panel of the symposium, entitled “Professor Orrego Vicuña and International Arbitration.” It included panelists Professor Juan Fernández-Armesto; Mr. José Ricardo Feris, partner at Squire Patton Boggs and former deputy secretary general of the International Court of Arbitration of the International Chamber of Commerce (ICC); and Dr. Gabriel Bottini, partner at Uría Menéndez.
Professor Ziadé first remarked that, through an exceedingly diverse and rich career as international academic, judge, arbitrator and mediator, Professor Orrego had left his mark in almost all areas of international law, from public international law, including the delimitation of land and maritime boundaries, to investment law, commercial law, trade law, environmental law, and international administrative law.
For Professor Ziadé, like many others, Professor Orrego’s name will long be associated with the Maffezini v. Spain decision in 2000. The tribunal in this case, chaired by Professor Orrego, found that the most-favored-nation (MFN) clause in the Argentina/Spain BIT entitled Mr. Maffezini, an Argentinian national, to rely on the more favorable arrangements concerning dispute resolution in the Chile/Spain BIT. Five years later, the tribunal in Plama v. Bulgaria departed from the reasoning of the Maffezini tribunal, disagreeing with its assertion that the harmonization of dispute settlement provisions could be achieved by reliance on the MFN clause. Following Maffezini, Professor Orrego was considered in some quarters as being over-receptive to investors’ concerns. Ziadé disagreed, emphasizing that a careful examination of Professor Orrego’s record shows not only that he was a member of many arbitration tribunals that rendered awards in favor of respondent states, but also that in Siag v. Egypt he even departed from the tribunal majority and rendered a dissenting opinion in favor of the respondent state.
In his Siag dissent, Professor Orrego considered that an investor seeking to initiate ICSID proceedings on the basis of a bilateral investment treaty must not have been a national of the host state on any of the following dates: the date of expression of consent by the host state, which is the date of entry into force of the bilateral investment treaty; the date of the investor’s expression of consent; and the date of registration of the arbitration request. He further considered that as the ICSID Convention does not define nationality, the principles of international law governing nationality, including the principle of effectiveness established by the International Court of Justice in the Nottebohm case, would come into play, meaning that a nationality of convenience could not prevail over the investor’s real and effective nationality.
Professor Juan Fernández-Armesto explored how, through landmark cases, Professor Orrego had helped to shape investment arbitration. He recalled that in 2009 the International Bar Association (IBA) balloted its members on the most influential awards in the history of investment arbitration: Maffezini v. Spain was ranked number one, and CMS v. Argentina was shortlisted. Professor Orrego chaired the tribunal in both cases, unquestionably becoming the most influential arbitrator in investment arbitration’s early development. Professor Fernández-Armesto pointed out that Professor Orrego always considered that the ultimate purpose of international law was to offer protection to individuals, and he consistently applied this philosophy when adjudicating investment disputes.
Mr. José Ricardo Feris drew attention to Professor Orrego’s internationalism, citing as an example his reliance on lex mercatoria in some of his awards in commercial arbitrations. Mr. Feris also highlighted Professor Orrego’s farsightedness, exemplified in his advocacy of the institutionalization of the Permanent Court of Arbitration (PCA) to enable it to play a more preponderant role, which it does today; his belief in the importance of more flexible ADR mechanisms, such as mediation, which his experience in the Papal mediation had impressed upon him and which the Singapore Convention on Mediation is now bringing to fruition; and his call for institutions to adopt fast-track arbitration mechanisms, such as emergency arbitrator and expedited procedures, which most have now done. Mr. Feris finally referred to Professor Orrego’s belief in the sacrosanctity of the work of arbitrators and his support for the enactment of an international convention on immunity for arbitrators.
Dr. Gabriel Bottini spoke of the importance to Professor Orrego of accessibility to international jurisdictions. Dr. Bottini recalled how, through the award in CMS v. Argentina, Professor Orrego, chairing the tribunal, definitively established the direct right of action of shareholders, as distinct from that of the company, where investment treaty rights had been breached. Dr. Bottini concluded that Professor Orrego’s contribution to investment arbitration continues to have an impact on practitioners today, who must reflect on how to arrive at just solutions where shareholder treaty claims coexist with those of the company and third parties.
On numerous occasions, reference was made to Professor’s Orrego’s immense human qualities, his kindness, humility and sense of humor. In his closing words, Professor Ziadé said that Professor Orrego was devoted to his family, that he remained loyal to his friends, always ready to assist, advise, and to mentor young talent, and that he was a most gracious person by nature, always ready to forgive his critics.