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LIDW 2024: Insights into Investment Arbitration from the EU and UK
Introduction:
The London International Dispute Week 2024 (LIDW) showcased the evolving roles of the United Kingdom (UK) and the European Union (EU) in investment arbitration. Key sessions explored the future of investment protection, enforcement of awards, and the special position of London as an arbitration hub. This article provides a summary of the significant discussions from the event.
Europe Horizon Scanning:
The opening session, "Europe horizon scanning – a kaleidoscope session," moderated by Dr Monique Sasson, addressed recent developments in investment arbitration. The panel, including experts like Duarte G Henriques, Professors Gerard Meijer, Veronika Korom, and Stefan Kröll, highlighted the uncertain future of the Energy Charter Treaty (ECT). Korom pointed out the EU's recent decision to withdraw from the ECT, while discussions also touched on the broader climate change context influencing these decisions. Rauschning raised concerns about the protection of contemporary investments, especially in renewable energy, under the ECT’s sunset clause.
Reimagining BITs:
The session "Reimagining BITs: Recent developments in the international investment regime with a focus on the UK," moderated by Sylvia Tonova, featured insights from Camilla Godman, Graham Coop, and Lord Guglielmo Verdirame KC. The panel discussed the implications of recent events on the future of investment protection and planning. The panellists also debated the potential removal of the ECT's sunset clause and its impact on future arbitrations.
Enforcement of ICSID Awards:
The session "Trends in the enforcement of ICSID awards: is the UK still a hospitable jurisdiction for the enforcement of investor-State awards?" moderated by Jeff Sullivan KC, focused on the UK's favourable stance towards arbitration enforcement. Panellists discussed how the UK’s legal framework supports arbitration, especially in the context of intra-EU awards, which have faced resistance in the EU following decisions like Achmea and Komstroy.
London’s Role in Intra-EU Investment Disputes:
London's strategic position in intra-EU investment disputes was the topic of another session. Moderated by Alejandro Garcia, the panel, including Judy Fu, Tim Rauschning, and Professor Emilia Onyema, emphasized London's divergence from the conservative approach of the Court of Justice of the European Union (CJEU). Onyema criticized the EU's stance, arguing that it undermines the very foundation of international arbitration. The discussion also covered the implications of choosing arbitration seats within the EU and recent decisions like the Swiss Supreme Court's deviation from CJEU precedents.
Future of the ECT:
During the Europe horizon scanning session, Korom and other speakers highlighted the pressing issue of the ECT's future. The EU’s withdrawal from the ECT and its implications for past and future investments were scrutinized. Tonova and Graham debated whether the sunset clause could be removed to better align with contemporary environmental priorities.
Funding Challenges in Investment Arbitration:
Godman provided a funder's perspective on the evolving funding climate in investment arbitration. She noted that funders are increasingly reluctant to finance the merits stage of proceedings due to prolonged durations but are more open to funding during the enforcement stage. Strategic approaches, including using diplomatic channels and seizing assets, were recommended for successful enforcement.
Conclusion:
The LIDW 2024 highlighted the significant changes and challenges in the investment arbitration landscape, driven by court judgments, legislative initiatives, and political decisions. As the field continues to evolve, London remains a central hub for arbitration, adapting to new realities while maintaining its favourable stance towards enforcement. The discussions at LIDW 2024 underscore the ongoing importance of staying informed about these dynamic developments.
Tags : #LIDW2024 #InvestmentArbitration #UKArbitration #EUArbitration #ECT #BITs #ICSIDAwards #InternationalDisputeResolution #LondonArbitration #ArbitrationFunding #ClimateChangeAndArbitration
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