- Date
- Thursday 23 Nov 2023, 12:30 - Friday 24 Nov 2023, 19:00
- Type
- Conference
- Spoken Language
- English
- Room
- C2-6
- Building
- Theil Building
- Location
- Campus Woudestein
Is the world without investment arbitration, a world with(out) justice? Investor-State Dispute Settlement has been undergoing profound criticism for the past fifteen years. This has, in turn, generated a wave of initiatives and proposals for reform, either institutionally mandated (e.g., the work of the UNCITRAL Working Group III) or commenced by scholars and civil society organizations. These proposals range from minimal reforms of the current investment arbitration mechanism (e.g., introducing a code of conduct for arbitrators) to a complete eradication of the system. What these all have in common is the acknowledgment that the status quo is untenable and requires at least some degree of change.
Starting from these premises, the conference intends to push the ‘reform’ debate forward and interrogate what a ‘post ISDS’ world entails in terms of delivering ‘justice’.
The conference aims to address two key questions: (i) whether and, if so, (ii) what form(s) of ‘justice’ will feature in the post ISDS scenarios proposed thus far.
The conference will be structured along the following themes:
- The institutional architecture and implications of the different reform proposals, including the (re)turn to a full ‘privatization’ of ‘justice’ in investment disputes.
What are the salient features of the different proposals advanced so far? Will an ‘institutionalization’ of dispute settlement (e.g., MIC) significantly alter the perception of ‘justice’ of the ISDS system? Will abolishing treaty-based arbitration make contract-based arbitration the default mechanism? What would be the role of mediation and (possibly) facilitation mechanisms?
- The different frameworks and notions of ‘justice’ implicitly or explicitly articulated in the various reform proposals;
Justice has been articulated in a variety of forms. Yet, investor-state arbitration has been prominently considered a ‘private’ dispute resolution mechanism. What is the relationship between the dispute resolution function and ‘justice’? What other concepts of justice (e.g., distributive) do or should ISDS reform proposals normatively endorse, considering current global (e.g., climate) challenges? What type of reforms would be needed to entertain those concepts?
- ‘Justice’ for affected stakeholders other than investors or States (e.g., local community-based mechanisms, or ‘transitional’ justice for investment);
In whose interests and benefits will justice be delivered in the scenarios proposed thus far? What is the subjective dimension of justice present in the reforms and how is it addressed? What type of mechanisms can we imagine for ‘inclusive’ justice, within and beyond what has been suggested so far?
- ‘Justice’ in the substantive provisions of investment treaties and contracts underlying investment disputes;
Procedural mechanisms might well not be able to respond sufficiently to certain ‘justice’ needs and claims in the investment context; what type of substantive reforms are needed to generate a ‘just’ investment environment, both in the relevant treaties and further contractual arrangements (including insurance and financing agreements)?
- ‘Justice’ beyond dispute settlement. Alternatives to the current model of investment and (economic) development:
What paradigms of ‘development’ does the current set-up of investment law and arbitration respond to? What other alternatives to FDI can we imagine leading to a ‘just’ path for prosperity? What other (possibly bottom-up) models can be identified in pursuing justice in the context of ‘development’?
The conference aims at contributing to the current debate on the reform of investment arbitration, by shifting the focus from the proposals as such towards the forms and notions of justice at the core of these proposals. While a seemingly theoretical question, the issue of justice in investment arbitration has profound practical implications. International investment law traditionally offers foreign investors access to compensation through investor-State arbitration, based on a highly efficient enforcement mechanism. Yet, the right for recourse is exclusive and narrowly accessible only to foreign investors, at the costs of other affected stakeholders such as local communities.
The objective of the conference is to dissect the reform proposals and investigate whether these reforms are in fact just ’business as usual’ or whether they leave any space for a different paradigm that is not merely focused on financial remedies granted to investors, especially considering the consequences generated by the climate crisis. The conference will also explore what conceptual shifts are potentially necessary in the current architecture of the investment governance to address (re)distributive concerns.
The event brings together a varied group of experts. The intent is to ease the epistemic, conceptual, and practical divide between practitioners, civil society organizations and academics from different geographies and disciplines.
Programme
(download PDF version below)
THURSDAY 23.11.2023 | |||
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12:30-13:15 |
| Registration desk | |
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13:15-13:30 | Piotr Wilinski & Federica Violi | Introductory Remarks | |
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13:30-15:00 | Ana Maria Daza Vargas | Panel 1 | Regional and National Reflections on the System and its Prospects
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Asli Gurbuz Usluel | Evolving trends in investment arbitration - a comparative analysis with focus on CSR |
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| Stephanie Triefus
| Gabriel Resources v Romania: justice, domestic courts and foreign investment |
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| Filip Balcerzak | Looking into crystal ball - current and future legal protection of renewable energy investments |
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| Olaniyi Felix Olayinka
| Towards a post investor state dispute settlement in Africa: The right to self-determination and environmental sustainability in Nigeria
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15:00-15:15 |
| Coffee Break | |
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15:15-17:00 | Joshua Paine | Panel 2 | 2050: A Nature Odyssey – Alternatives for the Protection of the Environment
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| James McGlaughlin
| The New Norm(al): Exploring the Normative Potential to Reshape International Investment Law for the Green Transition
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| Jose Gustavo Prieto Munoz
| Sustainability as a meta-principle in international investment law: a legal standard for 'multi-faceted' disputes |
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| Pranav Narang
| Addressing the asymmetries in evolving international investment law regime
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| Zulker Nayeen
| Environmental counterclaims in ICSID arbitration: options in addition to the report of Working Group III
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| Leonie Reins and Endrius Cocciolo | The notion of 'justice' in the ECT - an analysis from the perspective of Earth System Law |
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19:00-22:00 |
| Dinner | |
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FRIDAY 24.11.2023 | |||
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9:30-10:00 |
| Registration Desk | |
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10:00-10:45 | Leïla Choukroune | Keynote speech | Keynote speech | Disputed Justice: the Settlement of International Investment Cases in Question(s) | |
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10:45-11:00 |
| Coffee Break | |
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11:00-12:30 | Gerard Meijer | Panel 3 | Justice Formula (and a theory behind it)
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| Thomas Schultz and Simon Bezat | Arbitration paradigms and concepts of justice |
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| Naimeh Masumy
| The clash of conflicting narratives: what lies beneath the ISDS legitimacy crisis
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Claiton Fyock | Justice in the epistemologies of the status quo: a critical realist examination of investment arbitration's reform | ||
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| Harshad Pathak | Reimagining international investment law - or how to reform indeterminacy and identity in ISDS |
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12:30-13:30 |
| Lunch Break | |
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13:30-15:15 | Gamze Erdem Türkelli | Panel 4 | Communities in Focus – justice beyond the “usual suspects”
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| Charalampos Giannakopoulos | Justice in ISDS and the search for community |
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| Stefano Porfido | Reforming the ISDS system. What about restorative justice? |
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| Nevena Jevremovic | Reimaging international investment law: inclusive justice for investment affected parties |
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| Romit Sarkar and Karthik Subramanian | Room to manoeuvre? Exploring "cause lawyering" for justice in existing ISDS framework |
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15:15-15:30 |
| Coffee Break | |
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15:30-17:00 | Julian Scheu | Panel 5 | What if…? New Paradigms in a post-ISDS World
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| Marcin Menkes
| Revisiting the Impact of ISDS Dismantling: Cui Bono?
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| Szilard Gaspar-Szilagyi | Are the protections offered by EU law a suitable alternative to those offered by international investment law? |
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| John Saidi Nyanje
| Time for a Pan-African investment court? |
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| Abdurrahman Erol | Investor accountability through yet another binding treaty? Analysis of the relationship between human rights and international investment in the negation of a binding treaty on business and human rights |
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17:00-17:15 |
| Coffee Break |
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17:15-18:00 | Discussants + Keynote + Organisers | Closing Roundtable | |
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18:00-19:00 |
| Borrel/Drinks |
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How to get here:
Click here for the directionsThe ‘Theil Building’ is indicated on the map of Campus Woudestein available on the webpage linked above.