BCDR Partners Fifth Annual EFILA Conference
31 January 2020
The Bahrain Chamber for Dispute Resolution (BCDR) was a supporter of the fifth annual conference of the European Federation for Investment Law and Arbitration (EFILA) held on 30 January 2020 in the London office of Herbert Smith Freehills.
Entitled Investment Protection in the EU: Alternatives to Intra-EU BITs, the event took the form of four panel discussions on investment and investor protection under European Union (EU) law, alternative tools for effective investment/investor protection, and the future of dispute resolution under the Energy Charter Treaty.
The moderators and panelists were notable international jurists, legal academics and practitioners, including Judge Christopher Vajda of the Court of Justice of the European Union; Lord Peter Goldsmith, partner at Debevoise & Plimpton’s London office and former British Attorney-General; and Prof. Loukas Mistelis of Queen Mary University of London and chair of the Executive Board of EFILA.
Click here to see the full program of the event.
BCDR’s chief executive officer, Prof. Nassib G. Ziadé, moderated a panel entitled Alternative Tools for Effective Investment/Investor Protection. Prof. Ziadé was joined by panelists Mark Appel, member of ArbDB Chambers and former senior vice-president of the International Centre for Dispute Resolution (ICDR); Mélida N. Hodgson, partner at Jenner & Block LLP; Eloïse M. Obadia, investment legal consultant at the World Bank; and Prof. Gerard Meijer, partner at Linklaters.
In a lively exchange, the panel explored a wide range of questions relating to alternative tools for investor-state dispute settlement (ISDS). These included whether and to what extent ISDS mediation is different from commercial and other kinds of mediation; whether the confidential nature of mediation can be reconciled with transparency in ISDS disputes; and whether, as a process, mediation is equally accessible and appropriate for private parties and states, or whether states face more difficulties that put them in a disadvantageous position. The panelists also reflected on the causes of mediation’s underuse in ISDS and the measures that could be adopted to remedy this.
In addition, the panel discussed whether the recent United Nations Convention on International Settlement Agreements Resulting from Mediation (also known as the Singapore Convention on Mediation) could truly be viewed as the mediation equivalent of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
The panel’s discussions also covered the desirability and efficiency of conflict prevention tools and instruments in preventing disputes before they arise. Examples of such tools and instruments are the World Bank’s Systemic Investment Response Mechanism (SIRM) and Investor Grievance Mechanism (IGM), and the Energy Charter Conference’s Model Instrument on Management of Investment Disputes.
Finally, while noting the European Commission’s eagerness to introduce an international permanent investment court system and the potential effects of the Achmea judgment, the panelists considered whether domestic courts in EU member states could be an adequate alternative to intra-EU investment arbitration. It was felt that parties would try to maintain the option of resorting to arbitration through contractual mechanisms, for instance by inserting arbitration clauses in their contracts.
The conference included a keynote address by Meg Kinnear, secretary-general of the International Centre for Settlement of Investment Disputes (ICSID), entitled Alternative Dispute Resolution in investment: The Role of Complementary Mechanisms and Approaches. She reported on the new ICSID mediation rules, currently at the drafting and consultation stage.
The conference closed with remarks from the secretary-general of EFILA, Prof. Dr. Nikos Lavranos.