Abstract
This chapter examines the impact that ISDS reforms will have on counsel’s activities. More specifically, it discusses two specific amendments namely the establishment of an Advisory Centre on Investment Law (ACIL) and the elaboration of a code of conduct -using the example of the CETA. On one hand, this chapter tries to demonstrate that counsel may benefit from the establishment of the ACIL notably because it will help them to refocus on assisting litigant states and not representing them. Admittedly, this Advisory Centre may provide legal services to litigant parties in the same fashion counsel do. But, and given the number and the length of investment disputes, such a centre cannot be entrusted with the exclusive management of all those disputes. Rather, we advocate in favour of complementary between them as it has occurred for the World Trade Organization (WTO) with the Advisory Centre of WTO Law (ACWL) and the roster of counsel.
On the other hand, most recent investment agreements have tackled the issue of ethics with the inclusion of provisions regulating the double-hatting and the adoption of a code of ethics for arbitrators. Even if these amendments are primarily directed towards arbitrators, they may be indirectly applicable to counsel in some cases as it will be discussed. We will conclude with some recommendations regarding the negotiations currently going on at UNCITRAL.
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Notes
- 1.
UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fourth session (Vienna, 27 November–1 December 2017), https://undocs.org/en/A/CN.9/930/Rev.1 (last accessed 13 January 2020), p. 3.
- 2.
ICSID, Proposals for Amendment of the ICSID Rules—Working Paper # 3, August 2019, https://icsid.worldbank.org/en/Documents/WP_3_VOLUME_1_ENGLISH.pdf (last accessed 13 January 2020), p. 1. The paper builds on the proposals that were originally published in August 2018 (Working Paper # 1) and March 2019 (Working Paper # 2).
- 3.
Vidigal and Stevens (2018), pp. 475–512.
- 4.
We use the term (private) counsel here for individuals and companies that provide (legal) advice and represent parties to disputes; normally these will be law firms and their staff. They can also be (former) academics or civil servants who are normally paid for their services and act in their private capacity.
- 5.
The reforms we propose to examine are included in the “five initial reform topics identified in the New York session in April 2019” see UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-seventh session (New York, 1–5 April 2019), https://undocs.org/en/A/CN.9/970 (last accessed 13 January 2020), p. 15, para. 84.
- 6.
UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fourth session (Vienna, 27 November–1 December 2017), https://undocs.org/en/A/CN.9/930/Rev.1, (last accessed 13 January 2020), p. 7.
- 7.
One author speaks about “parties own legal costs and tribunal and institutional administrative expenses for conducting the arbitration”, Franck (2019), p. 135.
- 8.
Langford et al. (2019), p. 7.
- 9.
- 10.
See UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Possible Reform of Investor-State Dispute Settlement (ISDS) Advisory Centre, Note by the Secretariat, https://undocs.org/en/A/CN.9/WG.III/WP.166 (last accessed 14 January 2020), pp. 5–6.
- 11.
Brown (2017), pp. 689–690.
- 12.
Joubin-Bret (2015), pp. 4–7.
- 13.
Alisher (2016), pp. 1–3.
- 14.
ACWL, Report on Operations 2018, https://www.acwl.ch/download/dd/reports_ops/Final_Report_on_Operations_2018-for-website.pdf (last accessed 14 January 2020), pp. 14, 47.
- 15.
- 16.
UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Possible Reforms of Investor-State dispute settlement, Submission from the Government of Thailand, 8 March 2019, https://undocs.org/en/A/CN.9/WG.III/WP.162 (last accessed 14 January 2020), p. 5.
- 17.
- 18.
Brown and Reynolds (2015), pp. 160.
- 19.
Article 27 al. 2 of Dispute Settlement Understanding (DSU) on rules and procedures governing the settlement of disputes (Annex 2 of the WTO Agreement).
- 20.
It should be recalled that the admission of private lawyers on governmental delegations before WTO DSB in now an established principle, see WTO, Panel Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas, 22 May 1997, WT/DS27/R/GTM; WTO, Appellate Body Report, European Communities—Bananas, 09 September 1997, WT/DS27/AB/R; WTO, Panel Report, Indonesia—Certain Measures Affecting the Automobile Industry, 02 July 1998, WT/DS54/R WT/DS55/R WT/DS59/R WT/DS64/R; WTO, Panel Report, Korea—Taxes on Alcoholic Beverages, 17 September 1998, WT/DS75/R WT/DS84/R. This principle is less established in the context of consultations that precede the establishment of a panel, see Statements by the United States at the Meeting of the WTO Dispute Settlement Body Geneva, November 21, 2018, pp. 40–42, to be found at: https://geneva.usmission.gov/wp-content/uploads/sites/290/Nov21.DSB_.Stmt_.as-deliv.fin_.public.pdf (last accessed 14 January 2020).
- 21.
https://www.acwl.ch/download/dd/reports_ops/Final_Report_on_Operations_2018-for-website.pdf (last accessed 14 January 2020).
- 22.
- 23.
In practice, cases vary a lot in length from less than 1 year (see US-Wool Shirts and Blouses) to more than 6 years Australia- Tobacco Plain Packaging (Indonesia). But it is safe to say that ISDS cases are, on average, longer than WTO cases.
- 24.
- 25.
ACWL, Budget for 2019, Proposal of the Management Board, ACWL/MB/W/2018/6, 05 October 2018, https://www.acwl.ch/download/general_assembly_mmeting_documents/11.12.2018/ACWL-MB-W-2018-6-Budget-for-2019.pdf (last accessed 14 January 2020).
- 26.
“Documents published on the website of Costa Rica's ministry of finance shed light on how the state chooses external counsel. For each tender, the ministry of foreign trade drew up a list of seven or eight vetted international firms, tallying their successes and failures in other treaty cases on behalf of states and investors. It also supplied an estimate of the value of the contract. Recommended firms were invited to make bids – but the list differed for each case… Only four firms put in bids. Allen and Overy’s was the highest, at just under US$2.37 million, followed by Baker Botts at US$1.75 million. Two firms came in below the ministry’s target – White & Case bidding US$1.57 million and Sidley making the winning bid of just under US$1.15 million”, see Parry (2013).
- 27.
“Arrangements for the defence of Ukraine in investment arbitration are determined by the Ministry of Justice of Ukraine on a claim-by-claim basis. Services of internal and/or external counsel may be used for these purposes. The Law of Ukraine “On Public Procurements” No. 922-VIII dated 25 December 2015, which entered into force on 1 April 2016, regulates the public procurement of legal services connected with the representation of Ukraine in international juridical bodies. In particular, the Law stipulates that such services may be procured in accordance with special negotiation procedure (i.e., after negotiations with one or several participants) under the decision of the Cabinet of Ministers of Ukraine or the National Security and Defence Council of Ukraine – or through the two-stage competitive dialogue procedure. General procurement process may also apply” see Droug and Gontar (2018), p. 12.
- 28.
Société Générale de surveillance SA v. Pakistan, ICSID Case No. ARB/01/13, Decision on disqualification of Arbitrator, 19 December 2002, ICSID Reports, Volume 8, p. 398.
- 29.
Franck (2019), p. 136.
- 30.
Sharpe (2018), p. 693.
- 31.
Statute of the International Court of Justice, adopted the 26 June 1945, entered into force 24 October 1945; see also Article 53 ITLOS Rules of the Tribunal, as adopted on 28 October 1997 and amended on 15 March 2001, 21 September 2001, 17 March 2009 and 25 September 2018.
- 32.
Rule 18 of ICSID Arbitration Rules; see also Article 5 of UNCITRAL Arbitration Rules adopted in 2013.
- 33.
Rosenne (2006), p. 1133.
- 34.
- 35.
In comparison, non-state litigants are represented by counsel and advocates, see Article 19 CJEU Statute.
- 36.
“States have traditionally adopted three different approaches to the defence of their interests in ISDS cases. Some States organize their defence through a dedicated in-house team. Other States use a combination of an in-house team working in various degrees of cooperation with outside counsel. The vast majority of States outsource their defence to outside counsel”, UNCITRAL Working Group III (Investor-State Dispute Settlement Reform), Possible Reform of Investor-State Dispute Settlement (ISDS) Advisory Centre, Note by the Secretariat, https://undocs.org/en/A/CN.9/WG.III/WP.168 (last accessed 16 January 2020), p. 3.
- 37.
See Cot (2002), p. 835; Ziegler and Kabre (2019), pp. 544–565; see also M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Judgment, Separate Opinion of Judge Cot, ITLOS Reports 2013, p. 114, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_18_merits/published/C18_Cot_280513.pdf (last accessed 16 January 2020).
- 38.
See M/V “Norstar” (Panama v. Italy), Preliminary Objections, Judgment, ITLOS Reports 2016, p. 19, para. 66. https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.25/Preliminary_Objections/Judgment/C25_Judgment_04.11.16_orig.pdf (last accessed 16 January 2020).
- 39.
M/V “Norstar” (Panama v. Italy), Preliminary Objections, Judgment, ITLOS Reports 2016, p. 25, para. 95, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.25/Preliminary_Objections/Judgment/C25_Judgment_04.11.16_orig.pdf (last accessed 16 January 2020).
- 40.
M/V “Norstar” (Panama v. Italy), Preliminary Objections, Judgment, ITLOS Reports 2016, p. 25, para. 94, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.25/Preliminary_Objections/Judgment/C25_Judgment_04.11.16_orig.pdf (last accessed 16 January 2020).
- 41.
See M/V ‘Norstar’ (Panama v. Italy), Preliminary Objections, Judgement, Declaration of Judge Cot, ITLOS Reports 2016, p. 2, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.25/Preliminary_Objections/Judgment/C25_J_041116_decl_Cot_TR.pdf (last accessed 16 January 2020).
- 42.
‘Grand Prince’ Case (Belize v. France), Prompt Release, Judgment, Separate Opinion of Judge Anderson, 20 April 2001, p. 54, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_8/published/C8-J-20_apr_01-SO_A.pdf (last accessed 16 January 2020).
- 43.
‘Grand Prince’ Case (Belize v. France), Prompt Release, Judgment, Separate Opinion of Judge Anderson, 20 April 2001, p. 54, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_8/published/C8-J-20_apr_01-SO_A.pdf (last accessed 16 January 2020).
- 44.
Armed activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, Declaration of Judge Oda, at 132.
- 45.
‘Grand Prince’ Case (Belize v. France), Prompt Release, Judgment, Separate Opinion of Judge Anderson, 20 April 2001, p. 54, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_8/published/C8-J-20_apr_01-SO_A.pdf (last accessed 16 January 2020).
- 46.
‘Grand Prince’ Case (Belize v. France), Prompt Release, Judgment, Declaration of Judge ad hoc Cot, p. 53, para. 14, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_8/published/C8-J-20_apr_01-D_C.pdf (last accessed 16 January 2020).
- 47.
“Juno Trader” (Saint Vincent and the Grenadines v. Guinea-Bissau), Prompt Release, Judgment, Joint Separate Opinion of Judges Mensah and Wolfrum, ITLOS Reports 2004, p. 59, para. 6, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_13/13_judgment_181204_sep_op_Wolfrum_Mensah_en.pdf (last accessed 16 January 2020).
- 48.
M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Judgment, Separate Opinion of Judge Cot, ITLOS Reports 2013, p. 114, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_18_merits/published/C18_Cot_280513.pdf (last accessed 16 January 2020).
- 49.
M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Judgment, ITLOS Reports 2013, p. 24, para. 47, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_18_merits/published/C18_Judgment_280513.pdf (last accessed 16 January 2020).
- 50.
‘Grand Prince’ Case (Belize v. France), Prompt Release, Judgment, Declaration of Judge ad hoc Cot, p. 53, para. 15, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_8/published/C8-J-20_apr_01-D_C.pdf (last accessed 16 January 2020).
- 51.
See, for example the Articles 4 to 6 of the International Law Commission, Responsibility for States for Internationally Wrongful Acts, 2001, https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf (last accessed 14 January 2020).
- 52.
Sharpe (2018), p. 680.
- 53.
See CDC Group PLC v. Seychelles, ICSID Case No. ARB/02/14, Award, 17 December 2003, p. 8, http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C219/DC696_En.pdf (last accessed 14 January 2020).
- 54.
- 55.
Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. Argentine, ICSID Case No. ARB/07/26, Decision on Jurisdiction, 19 December 2012, p. 14, para. 51, https://www.italaw.com/sites/default/files/case-documents/italaw1324.pdf (last accessed 14 January 2020). See also Sempra Energy International v. Argentine, ICSID Case No. ARB/02/16, Decision on Objections to Jurisdiction, 11 May 2005, p. 41, para. 146, http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C8/DC509_En.pdf (last accessed 14 January 2020); Enron Corporation and Ponderosa Assets, L.P. v. Argentine, ICSID Case No. ARB/01/3, Decision on Jurisdiction (Ancillary Claim), 02 August 2004, p. 12, para. 39, http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C3/DC502_En.pdf (last accessed 14 January 2020).
- 56.
Schreuer (2016), p. 737.
- 57.
PCA case No. AA 227, Yukos Universal Limited (Isle of Man) vs. The Russian Federation, Final award, 18 July 2014, p. 577, para. 1880, https://www.italaw.com/sites/default/files/case-documents/italaw3279.pdf (last accessed 14 January 2020).
- 58.
See, for example, Articles 2 and 20 ICJ Statute, Article 6 Convention for the Protection of Human Rights and Fundamental Freedoms of the 04 November 1950, Article 40 Rome Statute of the International Criminal Court.
- 59.
UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-seventh session (New York, 1–5 April 2019), https://undocs.org/en/A/CN.9/970 (last accessed 14 January 2020), p. 15, para. 84; see also Giorgetti and Wahab (2018), pp. 1–13.
- 60.
Pérez (2018), pp. 105–128.
- 61.
See Fach Gómez (2019), pp. 102–115.
- 62.
Langford et al. (2017), p. 6.
- 63.
UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-fifth session (New York, 23–27 April 2018), https://undocs.org/en/A/CN.9/935 (last accessed 14 January 2020), p. 12, para. 78. Bernasconi-Osterwalder, Johnson and Marshall (2010), p. 17.
- 64.
Kinnear and Nitschke (2015), p. 53.
- 65.
Article 17 ICJ Statute; see also Article ITLOS Statute.
- 66.
Speech by H.E. Mr. Abdulqawi A. Yusuf, President of the International Court of Justice, on the occasion of the seventy-third session of the United Nations General Assembly, 25 October 2018, https://www.icj-cij.org/files/press-releases/0/000-20181025-PRE-02-00-EN.pdf (last accessed 14 January 2020), pp. 11–12.
- 67.
http://www.siac.org.sg/our-rules/code-of-ethics-for-an-arbitrator (last accessed 14 January 2020).
- 68.
Annex to CPTPP/COM/2019/D004, https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/cptpp-ptpgp/isds_code_conduct-rdei_code_conduite.aspx?lang=eng (last accessed 14 January 2020).
- 69.
UNCITRAL, Report of Working Group III (Investor-State Dispute Settlement Reform) on the work of its thirty-eighth session (Vienna, 14–18 October 2019), https://undocs.org/en/A/CN.9/1004 (last accessed 14 January 2020), pp. 11–15.
- 70.
ICSID News Release, Professor Chiara Giorgetti Joins ICSID as Scholar in Residence, 09 September 2019,https://icsid.worldbank.org/en/Pages/News.aspx?CID=340 (last accessed 14 January 2020).
- 71.
See, inter alia, The Hague Principles on Ethical Standards for Counsel Appearing Before International Courts and Tribunals, adopted the 27 September 2010 by the Study Group of the ILA on the Practice and Procedure of International Courts and Tribunals, https://www.ucl.ac.uk/international-courts/sites/international-courts/files/hague_sept2010.pdf (last accessed 14 January 2020) or the IBA Guidelines on Party Representation in International Arbitration, adopted the 25 May 2013, https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx (last accessed 14 January 2020).
- 72.
Skinner (2016), p. 297.
- 73.
Rules of Procedure of the Court of Justice of 25 September 2012 (OJ L 265, 29.9.2012), as amended on 18 June 2013 (OJ L 173, 26.6.2013, p. 65), on 19 July 2016 (OJ L 217, 12.8.2016, p. 69) and on 9 April 2019 (OJ L 111, 25.4.2019, p. 73).
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Kabre, R.J., Ziegler, A.R. (2021). Private Counsel and the Proposed Reforms of Investor-State Dispute Settlement (ISDS). In: Fach Gómez, K. (eds) Private Actors in International Investment Law. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-48393-7_14
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