 Good afternoon to all, and hope you enjoyed your lunch. My name is Zidane B. And I would like to introduce you to our panel moderator and team. In line with the main theme, our investment plan is on defending arbitration, the lost battle. We are very pleased to have this Wendy Miles QC who is a partner at the Devoys Interest and LLC as a moderator of the investment plan. Ms. Miles QC is ranked among the leading arbitration lawyers in chambers these days, and is a leader in the field of international arbitration in chambers here. She frequently acts as an advocate for international companies and states. She has published and spoken widely on issues of international arbitration. She teaches regularly and attains a special interest in the use of international dispute agreement in interstate peace negotiations and settlement, including in relation to climate change, climate change justice, and reinterests. Ms. Miles QC is also acting as a vice president of the International Chamber of Commerce Court of Arbitration. Thank you very much, and please welcome Ms. Miles QC. I'm happy to be organised for such an efficient and well-run conference, as many others are not. Many of us are well. One thing in my capacity as co-chair of the Arbitration Pledge that I just wanted to mention was some of you may have noticed the panel before us was, in fact, a mannel. For the benefit of the organisers, they tried really, really hard to get women on their panel. They were aware of it. They invited five women to speak. Maybe it's this Saturday, I don't know. But just as a matter of practice in life to the women out there, when you're asked to speak on a panel, if you can't, try organised, set up another woman in place so that we can have more males and make life a bit easier on the organisers. So, under the auspices of our theme, the Cambridge Arbitration Day, Winds of Change, Roofing in the Future of Arbitration, our panel is diving into investment arbitration, and our topic in particular, Defending Investments Arbitration, A Lost Battle Question Mark. That's not our topic, but it's only a pamphlet. Question mark, so it is a question mark. We're going to test the proposition. It's not a statement of truth, and I hope we'll convince you all of that by the end of the day. So, there's no better introduction to our topic than a speech, a lecture, that was given by Professor Reesman in Miami on the 9th of February. Those of you who haven't seen it or read about it, I'm sure it will be published in due course, but there was a per-galapatration review article on it on the 16th of February, which you can all look out. He examined what he described as potentially the end of the Great Compact, and he declared investment law to be in a crossroads. And to put that declaration, the end of the Great Compact, in context, I'd just like to read to you from the Ga'ar article, because I think it positions perfectly what our four speakers are going to talk about. He said, with globalization and the surge of nationalist sentiment in many economically important states, the future of international investment law could be at a critical crossroads. He said that a decade into the new century, the architecture of the world is bucking under threats. The Baron Knight is giving this lecture in Miami in the US. Just, just, just, in this, some threats are greater than others. The international or provisional acquisition of new territory by force is being flooded in Crimea, Jerusalem in the West Bank, the Western Sahara, Tibet in the South China Sea, judgments of the international court of justice and interstate of order for the PCA of the New York. International trade and investment law also seems to be wobbling, whether because it's buckling or adjusting to a new world order. Unlike in the past, the agitation for change is not emanating from developing states in Asia, Africa, and Latin America, but from the path to extortionation. He said this is a convergence of momentum social changes that have led to the investment system being questioned by the very actors who participated in this establishment. If Doran's, this morning, spoke about change, he had the delightful quote, nothing is consistent except change. If we want everything to remain how it is, we must change everything. And I'd like to bear that in mind when you're thinking about the investor state system in particular. If we wanted to stay the same, if we want this system, this great compact to continue doesn't need to change, how much does it need to change, and how we change it without destroying the system. In terms of the provenance of the great compact, I just want to put that in context, he called it the foundational arrangement that underscores contemporary international investment system, whereby traditionally powerful investor states waived the deployment of their superior power to protect their investors in return for host states are going to submit disputes to our treasurer. Compactly from the European imperialism, the state and distribution of the fruits of the industrial revolution around the world, as well as transport communication system to carry new technologies to citizens on the receiving end of investment, it initially seemed that, and this is important, he said, the mighty banks and financial corporations of distant metropolitan owned their natural resources, their electrical groups, their water supply networks, their countries, or customer internet, national law has established standards for treatment of aliens and their property, the left institutional mechanism to apply those standards, make recommendations of the discretion of states and make them progress as they wish. Nelson Goh, one of the former associates is in here, sounds a lot like an article that we just wrote saying, it's nice to know, great minds and all that, Nelson. So within the current system, what's changing for capital exporting states, it's a great compact, deep politicized investment dispute and removed the political expense of Berlin, Berlin of assumed private claims by the state, exercised a spectral coercive collection is what he said, he said that the idea was all states developed, developing a general socialist and communist, participated on an equal footing and fashion. This is the great compact, this is why it's so important and so valuable. In recent times, here's what's changing, two things in particular. Number one, the line between developed capital importing states and exporting capital, exporting states and developing capital importing states has become blurred. Maybe we all think about it, we can think of many examples. Investors have not tried against developed states, it was only a matter of time until the development states would begin to think like responders and start to push back against their own creation, they've trumped on laughter. And so the pushback, the pushback against that, it's given rise to a number of changes and we see the changes in the definitions of very equitable treatment, we see the changes in the interpretation of the NFL clause and most drastically all according to Reisman, the introduction of a conversation of an international investment court. He said, cycles of expansion and recession coincide with and aggravate these shifts as do, I'm guessing you have to note, the effects of climate change, he acknowledged that as well. So it's all of these factors, there's a number of social factors, there's a number of geopolitical factors that are changing the conditions which were in existence at the time the Great Compact was entered into, when the investor state system as we know it in 1986 came into its own in the exit convention. So what our three four amazing panelists are going to do is take Professor Reisman's ideas, notions and deep dive into four particular aspects of the system that he was discussing, questioning potentially challenging. And you are so privileged today because the organizers have managed to get here for you four representatives from four of the top public international law investor state arbitration practices in the world. They all happen to be in London because London is the center of where everything's at. And so first of all we have Georgia Mandali who's a partner at Volterra Theatre, one of the world's pure public international law firms and Georgia is going to start and deal with some of the jurisdictional questions, some of the challenges on preconditions to arbitration. And I hope in part answer the criticism that perhaps the system is, has become broader than what it was intended to be. And then after Georgia, I'm going to hear from Mark McNeill who's going to talk about some of the social aspects in the context of investment arbitration, human rights and trade war. So the individual effects of this system of invested state arbitration. And then Lucy Martinez from Threepass, did I say Mark was from Sherman and Sterling? No, I didn't answer that. I was from Sherman and Sterling. And then Lucy Martinez from Threepass is going to talk about enforcing arbitration agreements, arbitration hordes, which is another important check and balance on the system to make sure that it remains fit for the purpose. And then finally, the most drastic proposed change according to Professor Riesman is going to be addressed by Patricia Granville from Underwood and Porter. And he's going to talk to you about the international investment and the appeals mechanism and invested state arbitration. So we'll start with Giorgio and hopefully we'll have time at the end of the questions. So writing questions down as we go. Thank you very much, University Law Society. In the words of Dante DiGheri, abandoned all hope ye who enter here. Some actors on the investor state stage subscribe to the idea that once a treaty makes even a passing reference to arbitration, that's it, they're doomed. My objective is not to suggest for one moment that arbitration is hell, nor that Karen will pay us a visit. And much less that I am virtual. But those voices do require us to ask ourselves what it takes to come through the arbitration door, whether that is what it should take, what it might take in the future, all against the backdrop of made preconditions to arbitration be disregarded. Bear with me as I try to operate this in real time. My remarks are divided into two parts as you can see on the slide. There are varied categories of preconditions to arbitration. Today, I'll focus on those generally considered procedural groups rather than necessarily those perceived to go to jurisdictional capacity. That said, the textual basis for designating a treaty requirement is either procedural or jurisdictional is often blurred. Before we dive in, a speaker's preferred triumvirate of covenants. There is no categorical answer. Language differs from treaty to treaty and tribunals adopt different approaches. With that, let's set the scene. There are two common sets of preconditions to arbitration. Those require parties to negotiate prior to initiating an arbitration, so-called cooling off or waiting periods, ubiquitous and VITs, and those requiring an investor first to submit its dispute to host state court, often first specified period of time, the exhaustion of local remedies requirement, taking them in turn. Depending on the relevant language, it may be appropriate to disregard the precondition to negotiate. Often it is done on the ground that it is procedural and aspirational rather than jurisdictional and mandatory. That it is too vague and indefinite to constitute an enforceable obligation. And that if a time frame has lapsed, by the time a tribunal comes to consider it, the usefulness of observing it is negligible. In the name of pragmatism, it is pushed aside and the proceedings go ahead. And the rationale for doing so is often strengthened by the fact that one is perceived to always be free to walk away from negotiations. Even so, while cases like Lauder, the Czech Republic, Bindir in Pakistan and Stati in Kazakhstan have deemed procedural cool down or waiting periods as directory or aspirational, cases like Tulip and Turkey have held their observance to be mandatory. Moving quickly to exhaustion requirements, cases like SGS and Philippines bring to the fore the admissibility jurisdiction distinction and espouse the view that these conditions or even cool down ones actually, may be approached best as procedural matters of admissibility. Leading a tribunal be willing to state proceedings or to dismiss them without prejudice to the right to start new proceedings if the obstacle to admissibility has been removed, for example, through the exhaustion of local remedies. Of course, implicit in that right is the need to exercise it in a timely fashion. The recent award in Anson in China is instructive on that point. But what other lessons learned? What are the consequences of non-compliance with a precondition? Possibly damages, but possibly nothing at all. The overall question is certainly more complex with an exhaustion requirement because the purpose underlying that precondition, that is to give the host state's courts the opportunity to resolve and dispute hopefully fairly, arguably has more substance than a negotiation requirement. Even so, disregarding it has been seen as appropriate when reasonably clear that requiring the investor to bring a local court action will be futile, including because local remedies are unavailable or manifestly inadequate. Others still feel that an absolute rule prohibiting this regard of such preconditions, in appropriate cases, would subject investors to delay and costs for no purpose. In Ardindo Fijo in Argentina, endorsing Professor Abisabh's dissent in Abaclat, the tribunal found that the BIT requirement to have recourse to domestic courts set forth a bounding precondition for access to arbitration and that failure to comply with it would close off that access. The tribunal, however, then turned to arguments that the precondition could be adaptable to futility and by virtue of the MFN clause, i.e., allowing to import from BITs that don't mandate such preconditions. I don't propose to spend more time on the futility argument, which we could certainly debate at length. You can find variations of its articulation in Maromatis, an old PCIJ case, and in Croatia and Serbia, a more recent ICJ world. I will also be quick on the use of an MFN clause to find precondition, in actual, and equally controversial idea. We've certainly seen it in cases like Moctezina in Spain and Siemens in Argentina. But perhaps the days of expansive permissible, some might even say overly imaginative readings of MFN clauses, reaching indiscriminately to all four corners of a BIT, are numbered. Think again of the award in Anso, or of the February 2017 award in WNC Factoring and Czech Republic. With Atis Mutandi's possible harbingers of change. Now before moving to the second part of our presentation on the recent trends, two more quick historical points. The first relates to another type of precondition frequently found in earlier generation BITs. The approval or certification of an investment. The absence of which could result in a finding of no requisite consent by a respondent state. The example of Grislin in Malaysia is on the slide. Now even with this precondition, however, the pendulum swings between stringent adherence to BIT language, and an explicitly more lenient approach, not penalizing an investor for his failure to comply. It's failure to comply, sorry. An example of the latter is Desert Line and Yang. Finally, a word on fork in the road clauses. These clauses, which as you know, require an investor to make and accept a theoretically final and exclusive choice between pursuing claims through a BIT's arbitration mechanism or in local courts, present an either or option to the investor, and are less obvious for consideration as a precondition. But they might be said to represent the ultimate precondition. A meta-choice made by definition pre-arbitration. A condition meant the moment the choice is made. Now, of course, it presumes the choice will be respected. Treaties without fork in the road clauses have provisions with similar effect. Think of NAFTA Article 1121, which requires parties to waive their right to any domestic proceedings as a precondition to arbitration, and annex ID of the ECT, which allows member states to require investors to make a prior choice of a domestic remedy that would be preclusive of submission to arbitration. So, the historical trend in the case law leans towards interpreting preconditions to arbitration as procedural perhaps. Certainly, some commentators presume that their objective is to allow access to arbitration in as many situations as possible. That presumption likely stands from a belief that they are designed to enhance the efficiency of the arbitral process. Now, that view may be more correct for an inter-company commercial relationship, where both sides may not wish to have part of their disputes settled by a court and part by a tribunal. But it appears to me at least to underestimate the possibility that a state actually intended to arbitrate only a certain category of disputes, and that it only intended to consent to and confer jurisdiction on investors fulfilling certain criteria. To presume that investor state tribunal should interpret preconditions to arbitration as much as possible to just give access to arbitration is potentially at odds with the rules of treaty interpretation that states parties expected would be applied to the steps they set out in their negotiated treaties. So what if anything is changing? To the extent there is a discernible trend, it appears to be towards drafting or redrafting, as the case may be, BITs, or MITs, not the School of Massachusetts, with greater precision, with stricter and or more prohibitive language on preconditions to arbitration, and or on access to arbitration at all, presumptively in the hope that a tribunal will be reluctant to run rough shot over a more clearly worded intention. Let's consider some examples. India's new model, BIT, includes several refinements and carbons, including on preconditions to arbitration. Article 15 requires investors to exhaust local remedies before accessing arbitration, and it imposes several time bars for claims. Notably, the functioning of that precondition is laid out in painstaking detail, peppered with phrases like, for greater cert, in principle, sowing the seeds for stronger and less likely to be ignored preconditions. Even so, that model, BIT, will face the political reality of a generally pro-business Modi government. It remains to be seen more positioned in the old tape in future treaty negotiations. Inspired by SIDA and the moribund TTIP, Norway's 2015 model, BIT, includes explicit provisions guaranteeing the right to regulate certain sectors. But interestingly, when it comes to preconditions to arbitration, Article 14 of that model, BIT, is actually less radical than its 2007 predecessor, which sought to stymie access to arbitration by including language for an unclutical waiver of any right to pursue a matter for local courts, and a 36-month local courts period. Interestingly, shelving the 2007 model, BIT, in favor of its more moderate 2015 sibling, suggests that even an environment perceived to be more hostile to invest in arbitration, excessively strong or restrictive preconditions may make it more difficult, query too difficult to find willing treaty partners. Now, Australia provides another example, albeit one present in more extreme solutions. The draft of the TPP investment chapter leaked in March 2015 by WikiLeaks, I hope President Trump is not listening, includes ISDS provisions to which Australia added a footnote stating that it does not consent to any claim being submitted to arbitration in accordance with the ISDS provisions. While this is consistent with Australia's 2011 policy against ISDS, it is notable because in that draft, no other country seems to have registered a similar objection. Now, taking away the arbitration option altogether is certainly one way to strengthen preconditions to arbitration, but before we run off to learn Australian court procedure, the leak chapter did provide the footnote could be deleted, albeit subject to certain unlisted conditions. Other critical and skeptical voices remain. In the EU, we see it most poignantly in the commission's 5 July 2011 follow-up to the European Parliament resolution on the future European International Investment Policy, which called for changes to the present dispute settlement regime, including greater transparency, the opportunity for appeal, and the obligation to exhaust local judicial remedies where they are reliable enough to guarantee due process. In the US, we saw it famously through Senator Warren's off-ed piece, the Trans-Pacific Partnership Clause everyone should oppose. And the nuclear option, the strengthening of preconditions by removing the arbitration option to rule, remains out there. India and Brazil concluded a BIT at the end of 2016 that entirely excludes arbitration, as well as NFN and FET protections. Equally, South Africa has stepped away from arbitration, introducing a domestic investor state mediation scheme in its Protection of Investment Act 2015, and terminating all of its BITs with most EU member states. Moving swiftly along, and I'm trying to be conscious of my time with your indulgence on me. Moving swiftly along, a creative solution is enshrined in both CEDA and the EU Singapore FTA, a fork in the road U-turn, if you will. The U-turn clause is perhaps more of a precondition to arbitration than the traditional court in the road clause, although it remains more about choices and options. We will have to see how it operates in practice. It could just as easily vindicate the decision to go to a local court, rehabilitating and reestablishing along the way the reputation of and the trust in that local court, as it might allow uncertainty and potentially bad decision-making to go on function. And the final example before trying to draw some conclusions comes from Article 265 of Canada's Model FIPA, Foreign Investment Protection Agreement. And it is proof that our investigation should not be limited to recent trends. While a broader cross-section of states paying attention to arbitration and to the need for stronger preconditions may be a more recent phenomenon, some states have been alive to these issues for many years. As you can see, Canada's Model FIPA explicitly ties the preconditions, the conditions precedent, to its consent, making it harder to disregard them. Canada's careful drafting is a precious example, and it has informed its treaty negotiations for years. So where does that leave us? The lessons are all around us. States that are redrafting their BITs generally share two characteristics. They are learning from recent investment claims and from the ways Tribunals interpret less-than-clear treaty language. And they can dedicate resources to devising new treaty language. The NAFTA experience is instructive. Confronted with claims, NAFTA states learn from the potentially double-edged nature of their investment protection obligations. Over time, the Model BITs of Canada and the United States develop more sophisticated language, sometimes more restrictive language, more quickly. Similarly, now that Australia and European and other capital-exporting states face more frequent claims, the perceived need to strengthen the language of their treaties has flair at. And developing states, or what we consider developing states for a long time, are not far behind. But even then, an easier lesson still may be that it is not necessary, and certainly not always, a case of needing a stronger or more precise language, better treaties, or a feeling that protection only comes by doing away with the arbitration option altogether. In large measure, it actually may be more a case of needing investor state tribunals to exhibit a more regular willingness to abide by and interpret the language of the applicable instrument by respecting the bargain struck by the parties, by investigating more fully the steps that got that parties to their final agreed-upon language, and by refrain to act until properly seized. Might that be more in line with the great compact recently referenced by Professor Reisman in Miami? Would that be more in line with what states thought they were signing up to when they huddled with Aaron's office in the 60s? Should be often artificial procedural jurisdictional distinction even matter? Maybe the better view is that preconditions must be respected for one fundamental reason, whether investment or commercial arbitration. Whether investment or commercial arbitration is a creature of consent. The mutual intent of the parties at the time of negotiation to include a precondition cannot be overruled ex post facto on the basis of perceived efficiency. Particularly in investment arbitration, allowing an investor to bypass BIT's preconditions to arbitration in ignoring a failure to perfect consent, while presumptively holding the state to the BIT's substantive protections has the appearance of a pro investor bias and fuels the state backlash against investment arbitration we are living. Certainly national courts and the ICJ often rigorously apply preconditions and more rarely, although not never, will non-compliance with a precondition be excused, for example, on the basis of utility. Why should investor state tribunals be less rigorous? Does their ad hoc nature lead to a greater willingness to disregard preconditions? Do we need an investment court? I won't wade into these waters. I will patiently await Patricio's thunder on that point. But after a quick jog through some salient considerations, are we simply back at the doorway faced by Dante and Virgil? Maybe so, but this time, if new case law evidences that preconditions are being considered and give an effect to, as appropriate, we should be able to enter with a little more certainty and with a modicum of hope. Thank you. Thank you very, very much for that. Terrific. So notice how many of these strength and preconditions are coming from the developed capital exporting state. Perhaps this demonstrates, Professor Eastman's point, that the developed states are beginning to think like respect to respondents and starting to push back against their own creation. And in fact, perhaps this is a change that the system needs to remain the same. So we're turning that to another pushback and it comes in the form of a social pushback, social change and a response from Mark McNeill to deal with the human rights aspect of investment treaty and perhaps how we can respond to some of the criticisms that investors are perhaps hijacking protections that are supposed to be in place in international law to protect individuals, people, affected populations. Thank you very much. Good afternoon, everyone. Thank you to the organizers of the Cambridge Arbitration Day. I love coming here. It's a great forum in particular because the questions from the brilliant students tend to be so engaging. I have the very narrow and discrete topic of the interaction between investment arbitration, trade law and human rights law. And I will start with a quote from some of you right here. My dear leader, I would say that the eggheads who came up with this international law should turn on their television and watch CNN. I share this quote with you, my fellow eggheads, because it frames to some extent some of the topics that I will speak about. It's been discussed that there's a backlash against international investment arbitration. And the criticisms come in two basic forms. And the first that's already been alluded to is that there is said to be something about a killing effect on the state's sovereign ability to regulate in the public interest. And then even investment arbitration is sometimes thought to be contrary or undermines the protection and promotion of human rights. The second area of criticism, which relates to Professor Riesman's speech in February, is the fact that we are entering a cyclical era of de-globalization and even anti-internationalization, or anti-eggheadism, if you will. And we're entering this era and investment treaties, just by virtue of the fact that they are international treaties and they often live inside of free trade agreements are coming under attack. And we're going to have criticism for that reason alone. So let's start by addressing the first question about human rights and whether, as Wendy said, whether the system is being hijacked in favor of a very small constituency of foreign investors to the detriment of a state's ability to regulate in favor of the protection of human rights. From a historical perspective, it's an odd, it's a surprising contention, because human rights law and international investment law share a common image. And they both promote similar goals in terms of protecting the rights of persons against the influence of state power. And in one sense, I think the criticism tends to be exaggerated. It tends to be sensationalized. It's very easy to portray Philip Morris' rights, for example, as impinging on Australia's rights to regulate for the benefit of its population. And it's a very sensational case. It's drawn lots of attention for a good reason. But I do think that a lot of these criticisms are exaggerated. And you have very few cases, or no cases that I know of, in which an arbitral trivial has expressly elevated the economic rights of an investor over the human rights of the population of the host state. And the areas in which there's an actual conflict tend to be quite rare. At the same time, I can agree. I can sympathize with those who say that public interest is sometimes not taken into consideration adequately enough in investment-treat arbitration. And when you import the substantive law and the mechanisms of commercial arbitration you've grafted on to investment arbitration, you must be mindful of the fact that a state is not a regular commercial party. You have to treat a state with equality of parties, of course, procedurally. They must have the same time frames. They must have the same right to argue their case. But it's not the same as a commercial party. I say that because a state has many conflicting obligations to regulate for the benefit of the population. And sometimes those conflicting obligations bear on the actions that are at issue before the arbitral tribunal. And investment arbitration shares many traits, I would say, with public law adjudication, which involves judicial control over the exercise of public authority, which necessarily incorporates considerations of public interest and inherently considers those. And investment arbitration is, I think, rightfully sometimes criticized for not adequately taking that consideration. And we'll look at it with some discussion. Gerry mentioned some of the evolution of treaties, particularly in the NAFTA context, which I'm particularly familiar with. And some of the updating and modernizing of treaties. In some instances, to take advantage, to take more account of some of these interests, which I think is better for the system overall. So I'll come on to some of those changes. So let's look first at expropriation. So here are the three different areas of trade law to look at. We'll look at, first of all, investment arbitration in human rights. And consider arbitration first. And consider whether there's really a conflict between human rights law and investment arbitration or investment law. I would say that, well, the protection of the property of aliens has been the subject of international law for centuries. States have a long history of protecting the property of their aliens that has been confiscated, particularly during hostilities. And you see a lot of this case law origin from some of the claims commissions, basic land commissions. And human rights treaties often recognize the ownership of property as a basic human right. And also the just compensation for the deprivation of that property is a human right. Article 14 of the African Terrier on Human and People's Rights provides, quote, property shall be guaranteed and that it can only be taken away under certain limited circumstances and importance of this process. The European Convention on Human Rights, Article 1, Article 1 discusses, quote, the peaceful enjoyment of property and, again, protects property from being unlawfully deprived. And given this shared focus between investment arbitration, which obviously has strong protections against uncompensated determinations and human rights provisions, and human rights conventions, it's not surprising to see some parallel cases in this regard. So the Zimbabwe cases in which President Mogave's administration 2000 stripped some farmers of their land and gave it to certain veterans of the independence, the war of independence gave rise to some parallel cases. Some of the farm owners, the prior farm owners were dependent debt citizenship and were able to bring a successful claim under the Dutch Zimbabwe-Iron Investment Tree. You also had some other claimants who brought the claim successfully under the Southern African Development Community Tree which has human rights provisions and it was a very similar claim. So they sought compensation for the deprivation of their farms. You also see in this area of expropriation a lot of borrowing of jurisprudence. So there are a number of investment treaty cases which have looked to European Court of Human Rights or the Inter-American Court of Human Rights for jurisprudence, particularly in the area of regulatory expropriations. Again, because they're very similar, very common features that arise in both contexts. But when you look at, when you think about regulatory expropriation, this is probably the areas opposed to just a outright physical expropriation which is pretty rare in these days. Most expropriation cases are interactive regulatory and major. It is an area that gives rise to at least more potential for the suggestion that an investor's rights have been elevated over the rights of citizenship because there's been some sort of regulation that has affected the economic rights of this investor. And he seeks compensation, whereas the domestic, certainly since we're a domestic investor, perhaps don't have the ability to do so. And what is the solution for that criticism? In the CETA, which Giorgio mentioned earlier, it's a modern treaty between Canada and the EU. And it has a lot of modern features that are starting, they're taking into consideration a lot of these criticisms and a lot of these ideas. A lot of it, frankly, flows from the NAFTA context and all of the learning of the by the United States, by Canada, by Mexico, about what these standards mean and what they really meant that by their standards. So it harvests a lot of that knowledge. And annex 8A provides for greater certainty, except in rare circumstances, when the impact of a measure or series of measures is so severe in light of its purpose that it appears manifestly excessive, non-discriminatory measures of the party that are designed and applied to protect the legitimate public welfare objectives, such as health, safety and environment, do not constitute indirect expropriations. So this attempts to strike a balance and it incorporates basically a proportionality test that says that there's a presumption that when a state regulates in the public interest that it is legitimate and it doesn't give rise to a treaty claim and an obligation to compensate for an investor. But it does still leave room for the investor to say that the measure was really designed at affecting investment, that it was disproportionate to its stated aims, that it was simply labeled, you think of the Eucos cases and the measures that were labeled as tax measures. There are many examples in the investment arbitration world. So those types of, the language is still leave room for a tribunal and easily to get it. Those types of cases or something is labeled or construed as an environmental regulation that it really is aimed at, aimed at the investment. Current treatment is probably the biggest topic, the biggest focus of this type of criticism about whether investors' rights have gone too far and whether investment treaties need to be prepared back in some way. Current treatment has been a subject of human rights law for a number of years or for centuries. There are many cases before claims commissions where you see claims for reparations arising from cruel or inhumane treatment of foreign nationals in custody. Killings or brutality of police failure to apprehend a killer, which was the background for the famous near versus Mexico case in 1926. And in near, the tribunal there set a very high threshold for a breach of the current treatment standard, which was clearly tied to the minimum standard of treatment of our customer and international law. And it said it must amount to outrage, bad faith, willful, neglect of duty. This standard still lives in the bioinvestment treaty context to some consternation or to the relief of others depending on what your view is. The Glamis Gold case cited this standard fairly recently in its recent decisions. When you step outside the context of the NAFTA though, there's always discussion about whether there's an F&T standard in NAFTA that differs from the rest of the world perhaps. But when you have a treaty that does not tie parental treatment to the minimum standard of treatment of our international law, it's a freestanding broad standard. That's where you have some cases out there that have been subject to some criticism. And criticism of the language itself. There's this too overly broad. And how does the state possibly protect itself when it's agreed to a standard which basically says, I promise to treat investments fairly and not much more than that. Now the case law has developed a number of theories about legitimate interpretations and transparency and tried to give some content. It's a normative substance to this standard. But it still strikes me as remarkable that a state would cite a treaty that provides this sort of undertaking to treat a foreign investor with fairness or with equity. Because it's a standard that usually doesn't exist in the domestic law of the whole state. So you may be treating aliens more favorably than your own citizens. And it's a very nebulous, hard to define standard. So it's come under a lot of criticism. So what do we see in the seek to context? Let's go back there. And how that issue is resolved. So Article 810 in the CETA provides that a party breaches the obligation of fair and equitable treatment reference in paragraph one. If a measure or series of measures constitutes a denial of justice, a fundamental breach of due process in an administrative or regulatory proceeding, manifest arbitrariness, target discrimination, abusive treatment, such as coercion or harassment. And then there's also a provision that says and that a party may bring to the attention of the other party and review the content of this obligation as they see the case long develop. So if there's a case that gives some surprising content, fair and equitable treatment, the party can raise it and have to discuss it. And there may be a recommendation that seems to develop in this regard that is submitted to the CETA joint committee for a decision. So you see there are safeguards and a lot of concern about how do we give this standard some sort of content, some real content that will avoid these types of very broad claims, open-ended claims, that basically setting my investment was treated unfairly and therefore I'm entitled to compensation. And I think that when we think about the backlash against investment tree arbitration, that this for me is the right solutions to find language that draws some sort of reasonable middle ground, some standard that still allows for real substantive claims that still gives fair and equitable treatment real content as opposed to some of the provisions that Giorgio was talking about that basically shut down the ability to claim it all. These don't allow for real substantive claims when something has gone wrong, but it doesn't allow for such an open-ended, wide-ranging, an undefined, treated standard that comes under so much criticism. Denial of Justice is also, I think I would call, I was supposed to go through these. Denial of Justice is very often considered to be a sub-species of fair and equitable treatment at least in the NAFTA context, in the US context, Canadian treaties, European treaties, it's considered to be a sub-species. And there's a lot less controversy here in Denial of Justice. And you have a lot of, again, cross-fertilization and borrowing by investment treaties from the human rights courts. Famous Pekasado case held that seven-year delay in the treatment of a claim gave rise to a breach of the protection of denial, gave rise to a denial of justice. And that was a holding that came directly from the European Court of Human Rights, jurisprudence. So you see this in area in which I would say that human rights law and investment treaty arbitration are quite compatible and quite self-reinforcing. Portionality, I won't go over this in any detail. Lucy's actually written a very interesting article on portionality and how it's something that lives in human rights law and investment treaty arbitration. We saw a hint of that in the seat of revision that I showed you earlier with respect to expropriation and that it incorporates a portionality test basically in terms of determining whether there's a breach of the treaty. But it's a large topic, so I'll just mention it, that it's something that exists in both areas. Okay, trade law. There is, in trade law and investment treaty arbitration, investment law are distinct disciplines, but they also promote some similar objectives of globalization, economic integration, enhancement of economic welfare, and you often find them embedded in the same trees. A lot of the CETAs, for example, of course with many modern trade agreements have an investment factor that is embedded in them because they're promoting some of the same objectives. Clearly there are distinct standards, substantive standards in both contexts. The W-2 agreements are concerned with trade legalization. They contain norms addressing tariffs, non-tariff barriers, unilateral trade revenues, whereas by that investment treaties protect against expropriation, unilateral justice, full protection of security, parental treatment, as I mentioned, and those are things which don't have an analog in the trade context. Where you do find a significant overlap, however, is in the protections against discrimination. So MFN and national treatment in particular. That is an area where trade law and investment arbitration overlap quite significantly. So you see in the GAT Article 3-4, for example, provides that both the products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded no less suitable treatments than that accorded to like products of national origin in respect to all laws, regulations, and requirements. Despite way of contrast, if you look at NAFTA Article 11.2, it provides that each party shall report investors of another party treatment no less favorable than that accorded in like circumstances to its own investors with respect to the establishment acquisition, expansion, management, conduct, operation, and say other other disposition of investments. So there are some differences there, right? The investment context, you are talking about treatment that covers what you say is you call the entire life cycle of the investment, right? Whereas in the trade context, you're generally talking about access of the product into the state. So there are different contexts. There are different remedies in each area. But still you do see significant borrowing of ideas from the WTO in the context of investment treatment cases in particular in the NAFTA cases. So in SD Myers, for example, which related to a decision by the government of Canada to prohibit the exportation of PCB waste allegedly to promote its domestic industry, domestic companies that handle this type of waste. And there the tribunal looked at the WTO context and said that when you think about national treatment in its context, you must take into consideration some of the provisions in that context that protect environmental rights. And so even though there weren't similar environmental provisions in the NAFTA, it's important that this concept of having to sort of weigh or balance the actions of the government of Canada in terms of whether it was motivated by environmental concerns or whether this was just rank protectionism. The Mathenax case as well, the tribunal used hand and WTO to address prudence and concluded that like circumstances was analogous to like products, at least on the facts of that case. There's also in this area potential for parallel claims. And there are a number of examples of parallel claims where you can think of sort of a protectionist measure that prohibits a good from entering into the country. But really it's aimed at the investment where its major impact is on the plant or the factory or the investor that needs that piece to conduct its business. And you see an overlap there between trade and investment claims. And you saw that in the software lumber cases in a very long standing dispute between the United States and Canada over the importation of software lumber. And there were claims brought under the NAFTA Chapter 11 and before the WTO at the same time. Another example of the well-known high fructose corn syrup cases involving a tax imposed by the government of Mexico on soft drinks and other products, other beverages that contained non-sugar sweeteners. And it was alleged that this was intended to protect the domestic sugar market. And it was interesting then because it spawned claims under NAFTA Chapter 11, the investment chapter, NAFTA Chapter 19, which deals with trade, and the WTO at the same time. Now you might step back and say, is this a problem having these parallel claims? Because there's a lot of talk about parallelism and whether this is a problem with investment tree arbitration. Interestingly, these types of claims can also be quite compatible. So we think about high fructose corn syrup there, the claimants who were successful were able to receive retrospective compensation for the injuries they would sustain as a result of this tax. And then in the WTO context, it allowed for perspective measures in the 2006 agreement between Mexico and the United States, which basically allowed for reciprocal market access between the two countries. So you had retrospective compensation and perspective solution as well. So in that case, these parallel claims were consistent and self-reinforced in some ways. So to conclude here, I'd say that the anti-discrimination revisions in investment trees are quite similar to what you find in the trade norms. I think you have to be very careful when you borrow, because they are different contexts, but there are a lot of similarities as well. And I think you have a lot less concern there arising in this context regarding what was referred to earlier as the backlash of the severe criticism of investment tree arbitration. I think that comes much more in the area of human rights and sovereign's right to regulate the public interest. So with that, I'll leave it there and be happy to take your questions at the end. I would state to agree to submit dispute to international arbitration. And the objective of it was to exclude government from the process. And as we heard from Georgio at the beginning of the process, in fact, the government's very involved in drafting the investment trees and the MTAs, but also in imposing or strengthening preconditions, including exhaustion of local remedies, which involves the national courts at the beginning of the process. Now, Lucy is going to talk to us about the end of the process and the enforcement of arbitral awards and talk to you not just about enforcement and exit or port, which is really what we're talking about with the Great Compact, but also on-citral investment decisions which do require, once again, for the successful party, the enforcing party, all the challenging counties to go back to an orderly government, back into the judiciary, to the national courts and states. Good afternoon, everyone. Delightful to be back here. It's my second time speaking here in Cambridge. Two years ago, it was on unfortunately. I'm allowed to be here again today talking about enforcement of investment tree awards. Here is the roadmap of what we're going to talk about today. I am going to give you some statistics. I know it's a Saturday afternoon, but try and stay with me. It doesn't give you an important in terms of contextualising the discussions. We'll talk through the options that an investor has or a state has when it has an award in hand. We'll go through some case studies which illustrate the various options that come up in relation to enforcement and challenges thereof. And we'll go through some conclusions. So, to start with, some statistics. We've heard a little bit already about the backlash in investor-state arbitration and investors hijacking the investment tree arbitration. Whenever I hear those words, I always want to think, well, what is the basis for that criticism? And whenever we hear those words, I'd encourage all of us to direct those speakers of those words to these sorts of statistics that tell us what's actually happening in terms of the outcomes on investor-state arbitration. This is Kudji's quite long tab. You can see here on the slide, there's been about 767 investor-state arbitrations to date. This is as of 1st of January 2017, so it's a few months out of date, but it's recently good. And the thing that's super interesting is 36.4% of those cases have been decided in favour of the state. So, the majority of cases are actually in favour of the state either on jurisdiction or on merits. We have 26.7% in favour of the investor. So, when people talk about hijacking, is it really a huge boon for the investor? Is it really a huge bang for the state? The statistics speak otherwise. And when we're talking about enforcement, we're talking about those orange and green slides potentially put in together. So, a state, when they win an award, they might get a cost award in their favour against the investor, but they may be trying to reinforce against that investor. More likely, the awards I'm talking about today in terms of enforcement, is when the investor has won the award, so the 27% got cases, and the investor is then trying to enforce the award or what happens there from. So, another statistic slide, a little bit a lot of from June 2016, also by Altar. It shows what's happening in investor state arbitration. I think you guys are probably reasonably familiar with these statistics, but it's interesting to note that investors are at least for now still talking with their feet, so to speak, in that they're continuing to file investor state claims. There was a bit of a dip in 2014, but in 2014, that risen back up again in 2016, that thing was broken, more cases filed. So, in terms of the great debate and the great compact at any system working, at least for now, investors are still generally saying, yes, but we'll come back to that at the end. So, now we're gonna talk about what happens in that, usually it's that 26 or 27% of cases where the investor has won, they have an award in hand, that award is often 300 pages long, and the question is, what can you do with that piece of paper or your award? And there are really four options that are on the slide, in terms of what can happen once you have that award in hand. And we'll talk through each of them. These aren't in order of commonality in terms of what happens most often, you all can get a mix of these things and application to another, San Thomas Enforcement, you may end up with a voluntary payment. So, we'll go through each of them in turn. Starting with the application to another or challenge, different terminology here, sometimes they hate or review, set aside. And the main difference here is the distinction between exit and non-exit cases. I know you guys are all familiar with that, so I'm gonna talk you through it, we'll come back to that again later when it comes to step two, enforcement. But one of the trends that we're noticing is there are increasingly, it is increasingly common for the losing state to move to set aside or another of the awards, set aside for once a child or another for exit. So this is your first potential challenge to enforcement. You get to the end of your arbitration, you have another award in hand, and the sovereign state immediately moves to another, which can add another two years or more to the process. So, I promised you some statistics, here are some more, and these are the exit statistics in relation to annulments. The exit collates and produces this information. Unfortunately, this trial does not, because it's impossible to monitor the year of arbitrations, but we have the answer trial statistics. You can see how it's gone over the history of exit. The current decade that we're in, you can see 103 awards have been rendered, as of when this was written, which was September 2016. Only three decisions have been annulled in part four and four. With the Grimace, I add that there's been at least one added to that, which is the Exxon Local Venezuela annulment, which came out last week, which is one of ours, which is what we Grimace, our Grimace, as I say. But statistically speaking, you are unlikely to be annulled. You can see, so where we're at now, 103 awards are ended, 23 have rejected the annulment application, three have annulled in part four, and 15, quite a high number have been discontinued for one reason or another. So certainly a trend, as I said, more occasion annulment is being filed. Exxon, statistically speaking, are unlikely to be annulled. But commentators do still refer to the annulment phase as being, quote, both the most unsettled and most unsettling part of exit arbitration. And it's certainly true for those of us who have lived through it. I don't know if you guys have been involved in any annulment proceedings, but the composition of ad hoc committees is different from what happens when you go to a court. They aren't always as deferential that they may be, the underlying tribunal, often a national court judge would be quite differential because they're not an investment arbitration specialist, whereas an ad hoc committee member often has the temptation to say, I know this stuff, I can tell you where you got it wrong. So that is slightly more uncertain in terms of the annulment outcome for exit cases. An interesting fact I learned in preparing for today is that the first draft of the exit convention actually had no mechanism for annulment in there. The final exit award was supposed to be final. And then eventually in debate, that the drafts decided they came in winning some sort of limited review mechanism and they added in the annulment process. But this is my last statistics, I think, I hope, that this is the exit annulment history of arbitration. I've just hit that 51st year of the exit convention, 510 cases in total, in the entire history, only 15, now 16, annuled in total or in part. So still a reasonably small number of cases are annulled. However, as someone who often represents investors and states, investors are concerned about what's happening in terms of the annulment. There's been some high profile recent annulments of the awards in the energy sector and our clients are increasingly choosing once-e-trial over exit arbitration because of those concerns about annulment. One other consideration in terms of post-award options here. So if you win, if the sovereign state or the person who's moving to annul all their case succeeds, then the award is set aside either in whole or in part. If it fails, if the annulment challenge fails or the set aside challenge fails, which is statistically more likely, you then go to one of the other steps. In this annulment or challenge stage, you can also have applications to interest security and states of enforcement. In the interest of time, I won't go into that besides noting that it is an extremely important part of the annulment or challenge process. So that is step one. That's your first option once you have an award in hand. There may be and increasingly is an annulment or challenge phase. The second option, which may happen in tandem with the first, is enforcement efforts in national courts. That's if there's no voluntary payment that I'll come to next. But the enforcement effort's more interesting because this is another sadly trend that there is less likely to be voluntary payment, which means the investor has their 300 page award, but then they have to actually enforce it if there is no voluntary payment. And this raises the distinction between exit and non-exit awards that I touch on earlier. As I said, I know you know this, so I won't go through it in detail besides noting there is quite a distinct enforcement regime between exit awards, which are enforced pursuant to the exit convention, and non-exit awards, which includes exit additional facility awards, which is enforced pursuant to the New York Convention. For both, you're gonna need to find assets. It's really what it's about in terms of enforcement. That once you have your award, whether it's for 100 million or 10 billion, you need to actually attach the awards of the sovereign state in which you have who's the award of debtor. That raises issues of sovereign immunity, which are incredibly complex, and are state specific. So each country has its own rules in relation to sovereign immunity. This is an increasingly fertile area of work for lawyers. There are law firms that only specialise in asset tracing and enforcement. You have to be quite creative, which isn't something that always comes readily to our lawyer. That person wouldn't do it, because you have to be creative about what assets you could potentially attach, and you can attach things potentially like ships, planes, buildings, oil cargoes, potentially. And I just read about a museum exhibition that people try to attach the assets in the museum exhibition, which was used to me, which is why I would not be all suited to that. I'm not creative enough to think about what assets could be enforced, but it is really important our sophisticated clients often ask before they even file the arbitration, they're thinking about enforcement. Assuming they're being against a state or a state entity, what's that going to get them? Where are the assets? Are they in a jurisdiction in which they could further enforce the law? There are many challenges and considerations in this enforcement process. Let's still end this part two. You may have to pay a court filing fee. For example, in Turkey, you've got to pay five percent of the award value before you can even go to Turkish courts. If you're talking about a billion dollar award, that's quite a lot of money, just to go to the Turkish courts. There are time limits for enforcement. Sometimes you can do it on an ex-partage, sometimes you need notice. This is a very specific area. I've read one commentator referred to enforcement as the Achilles heel of investor state dispute settlement because it can be difficult to enforce that 300-page wall unless you have it in hand. So there are certainly some challenges in this area. And it is, as I said, a growth area because there is increasing recalcitrance in most states in terms of payment. But one other option, the ray of sunshine, is that sometimes there is voluntary payment. And in fact, the conventional wisdom up until about five years ago is that most states do voluntarily pay investor state rewards. But the dirty little secret in investor state arbitration is they don't usually pay 100 cents on a dollar. So you may have voluntary payment, but they give you 50 cents of what your reward is worth. Or there's some sort of negotiated deal or an asset swap. And I think Mark said earlier, they're nice brave about the state is not a regular commercial party. And one of the nice things when you're negotiating on the state in terms of an award, the state can do much more for you than a commercial high hand. It's a tax breaks, waiving concession fees, giving you a new project, et cetera. So number three is voluntary payment. Also, you can have a negotiated settlement with the sovereign state. But the big exceptions to voluntary payments in recent years have been Argentina, Venezuela, and Russia, all of whom have refused to pay awards even once they've gone to the end of the environment process. So it remains to be seen if there will be a ripple effect from those recalcitrant states. If state X sees state Y and not paying an arbitration award and you're getting away with it, state X may say, well, why should I pay because so my state next door doesn't have to. Moving on to sale of awards, this is less common, but is also increasingly happening. It's happened most publicly in relation to certain awards against Argentina where voucher funds have bought up various awards and then use them as leverage to get a global settlement. I was involved in the sale of my those awards and in the interest of time, I'll skip my war story, but I can tell you about it. It's a bit disparaging to transactional lawyers, but it's fun for us to use lawyers so I can answer any questions or anything at the end. So case studies, I'm short on time so I'm just gonna put these up on the screen to show that they illustrate the complexities of these issues. Gold Reserve in Venezuela, Exit Additional Facility, it went through the Paris Court of Appeals, ultimately ended up as a negotiated settlement. Another very interesting example which illustrates the interplay of set aside proceedings, plus enforcement proceedings, plus negotiated summits at the end of the day, Mercure View, Romania. One of the reasons why this is super interesting and complicated is it raises the sector of the European Commission getting involved in investor state arbitration. Most recently, the punchline is Romania is not moving to terminate, it's in tribute to the IT. And so for those of us who work in the EU space, this is one that we really have to watch because this is almost changing every month what's happening in this field. So to wrap up conclusions, I have a quote on the screen which is from Winston Churchill. You can all read it. It's one of my favorite quotes. We can all take a moment to compare it with the quote that Mark put up from Donald Trump. And take a moment to weep silently at our level of aeration that our world leaders have developed over the years. And the reason why I like this quote is if you substitute dispute settlement for government and investor state arbitration for democracy, to me, it encapsulates my bottom line of this area. Yes, investor state arbitration has its challenges. Yes, it can be difficult to enforce awards. Yes, there are more applications to annul and perhaps more annulment than you would like. But the alternative is going through national courts or a line of diplomatic protection or doing nothing when the rule of law is broken. And to me, they are not appearing alternatives. And I think to investors, they are not appearing alternatives. So we have investor state dispute settlement, which I think works reasonably well. Wendy asked, is the system fit for purpose? I would say yes, but it still needs work. So the trends, more annulment applications, more challenge applications, more uncertainty about the outcomes, less voluntary compliance, more sales of awards, more enforcement proceedings and multiple jurisdictions. And the theme of the topic of the conference was, is it a lost battle? And my answer is no, it's not a lost battle. But in terms of enforcement, you will often need a balance of lawyers to win that battle, which is great news for all of us in the room that the best would be for our clients. So this slide issues lists some further articles. If you want to write in this area, you're more students, many of you are students, I'd encourage you to do so because it's a really fertile and interesting area and those of us who are here don't have time to write about these things, so please do so. And I look forward to your questions. Thank you. We did start 10 minutes late, so we're going to go over if that's okay. Yes, one thumbs up. So that we've got time for questions, assuming you all have many. So the most drastic proposed change of all, we'd say that's the last in terms of drastic measures, which is the International Court, so we should play. Thank you, Wendy. And thank you to the organizers for inviting me to join you again for what I'm sure will be a very engaging discussion for Saturday. I have been asked to address this slide by Wendy as the most drastic measure. Now, it is not a new topic, not at least in the sense of the appeals mechanism. It is something that has been debated for quite some time. In fact, for over a decade, the issue of whether an appeal mechanism should be built into the ISDMS system has been on the table and has been discussed. But the second part of the permanent standing body certainly is something that has been perhaps parting more attention in the last couple of years since the fall of 2015, when the EU approved the proposal in the context of the TPP negotiation, and that put that issue front and center. It also addressed the appeals mechanism. And so the two new elements have been discussed in tandem, but again, I emphasize that at least the appeal part is not new. Now, my presentation will focus on those two features and it will use the EU proposal as the basis for my remarks. And you will see, and I will cut right through it, there is no suspense in this presentation in the sense that I will be fairly critical of the EU proposal. It is really impossible for me in 15 minutes to list all the various points and criticisms that I have for that proposal in a manner that will show why I'm critical with statistics and in a way that will substantiate those elements. But I hope that I will at least give you some sample, some flavor for why I think that the EU proposal is ill-advised. And I say that with respect to the commission with this data. I think that it's entirely ill-admissing the reasons that the commission has given for the proposal that it has tabled. Now, I will also clarify that that is not to say that there is no merit for an appeals mechanism and more importantly for a permanent or standing body of adjudicators. However, the reasons that the EU has put forth in my opinion, do in the service to the merits of those two proposals. So let me start by identifying exactly what it is that we are talking about. And as I said, we'll do so in the context of the TTIP. Now, the EU in November of 2015 unveiled what I call the Investment Protection and Resolution of Investment Dispute Paper. It said that for the resolution of investment disputes between foreign investors and one party of the treaty, the EU proposed to establish what it called a Tribunal of First Instance. That would be composed by 15 judges, five of which would be members, I'm sorry, nationals of a member state of the EU. Five would be nationals of the US and five would be nationals of third countries. It also proposed in that same document the establishment of a permanent appeal tribunal to hear appeals of the issues that have been before the standing tribunal. And it said that it would be composed of six members, again, three from EU member states, three from the US and three of other third countries. Since that proposal, the EU has entered into agreements that have established these two additional elements to ISDS. On November, I'm sorry, in December of 2015, the EU and Vietnam included the negotiations of their free trade agreement. And in Chapter Two, Section Two, Article 12.1, they established a permanent tribunal. And that tribunal was composed, or is composed of nine members, three nationals of the EU, three nationals of Vietnam and three nationals of third countries. It also established a permanent appeal tribunal. And if that tribunal is composed of six members, two to two quality features of the proposal from the EU. In addition to the Vietnam EU agreement, there is the CETA agreement, which has been mentioned by my fellow panelists. And on October of 2016, the EU and Canada signed CETA, Comprehensive Economic and Trade Agreement. The European Parliament has voted in favor of CETA. It did so in favor of this year. And now the departments of the EU member states must approve CETA before it enters into force. And it establishes the appellate tribunal. And it also calls perhaps more ambitiously for the establishment of a multilateral investment tribunal. In that treaty, in Article 827, it says that the Joint Committee of CETA, of Penetrating to Force a Decrement, will appoint the members of the tribunal. And again, following with the composition or destruction of five and five and five. And it also establishes an appellate tribunal. In this treaty, it identifies perhaps in more detail what will be the mandate or the scope of the appellate tribunal. And it indicates that it will consider errors in the application or interpretation of applicable law, menacing test errors in the appreciation of the facts. And then it also references the grounds for annulment under the exit convention. And as I said, that treaty also calls for the eventual establishment of a multilateral investment tribunal and appellate mechanism. So here, the EU is already starting to put on the table the idea of creation of a multilateral body that will presumably constitute a world court or ISDS. Now, as I mentioned, the EU is not the first state to put such an idea or proposal on the table. In fact, the US has entered and had entered many years before the EU tabled this proposal into treaties with other states that contained at least the appellate mechanism idea. And it did so on the basis of the EU by, I'm sorry, the US bipartisan trade promotion authority act of 2002, which authorized the creation of appeals mechanism for investment disputes in trade agreements entered into by the US pursuant to this act. And indeed, a number of recently included US agreements do contemplate the potential creation of an appellate mechanism. And here you see the listed on the slide going as far back as 2003 and as recently as 2012. Now, to give you an idea of what the US and its training partners are saying in those agreements, I will quote the US-URY Bilateral Investment Treaty. And it says that within three years of the date of entry into the course of treaties, the parties shall consider whether to establish a bilateral appellate body or similar mechanism to review the awards rendered under Article 34. So it has not yet taken the decisive step of establishing these appellate bodies or mechanisms, but in all the agreements that I have cited in the slide, it contemplates the possibility of doing this. And there's an interesting provision in CAFTA, and I'll come back to this provision after I've gone through the elements of the EU proposal to contrast the approach that the US has taken with respect to this issue with that of the EU. And you will see why, in my opinion, the manner in which the US has gone about this is more prudent than the one that the EU has adopted. As I said, my presentation will focus on TTIP because it is more ambitious and far reaching than the ones adopted by the US and its training partners, and also because it raises greater concerns. The EU has been more specific in the manner in which it has tabled this proposal. It also has issued papers in which it has explained the motivation and the reasoning behind its proposal. And it's looking at that motivation that one really begins to understand the many ways in which this proposal is flawed and could lead to an outcome that would be actually contrary to the objectives that the EU ostensibly sought with the proposal. And let's start with the paper that the European Commission issued on 12th November, 2015. And here you will see that the EU is saying that this system that it is proposing will be beneficial for both the states and the investors for the reasons that it particulates in this paragraph and in other paragraphs that I will put up on the screen. You'll see that it says that it is beneficial because it will ensure the right to regulate. The states' right to regulate, something that Mark had to mention in his presentation. It also says that this will be insured through a new fully transparent system for resolving investment disputes with publicly appointed judges. It doesn't talk about arbitrators, it talks about judges with the high statical standards and the possibility to have errors corrected. Now, the objective, the effect to effectively safeguard the EU and its member states' right to regulate does not justify the means that are articulated in this paragraph through a newly fully transparent system for resolving investment disputes. We're talking about two different things. Safeguarding the right to regulate is an issue that concerns primary rules or substantive rules, not secondary or dispute settlement mechanisms, unless of course the Commission is suggesting that ad hoc tribunals have heard interpreting what was otherwise very clear substantive provisions and that a standing body would not incur in the same errors that were committed by the ad hoc arbitrators. But the EU continues to try to justify the proposal by saying that the proposal clarifies the content of key substantive standards of protection. Again, mentioning the right to regulate and saying that the governments can regulate in the public interest. Again, this has nothing to do with the investment of course system and an appeals mechanism. It contains or concerns substantive standards of protection and those same goals of clarifying the substantive standards of protection can be attained with the existing or traditional system, which the EU calls the old system by the way in its papers. Now, the EU continues and it says that the system has clear procedural deadlines to ensure that disputes are kept to a relatively short period of time, two years and then the costs are kept low. And then it goes on to say that 80% of the costs go to the lawyers. And again, it recognizes the clear substantive rules. The clear procedural deadlines and fast dispute settlement can be attained with ad hoc tribunals and appeal or no appeal. The proceedings limited to two years are not dependent on the creation of a permanent body of arbitrators. And if anything, an appeals mechanism will only add to the duration of the proceedings. Now, the clear substantive rules that the commission mentions here also do not depend again on the establishment of a permanent body of arbitrators or on an appeals mechanism. That clarification can be attained through proper drafting of the substantive rules. And to be fair to the commission, it also has addressed that in its proposal. It has narrowed the scope of the FEP provision that Mark mentioned. It also has provided more guidelines for the arbitrators when it comes to applying other standards to protection. Full security and protection, for instance, it has clarity that it will only cover the physical protection of the investment, not the legal protection, which is something that some tribunals not all but some tribunals had interpreted as being included in the FPS provision. Another feature or another defense put forth by the commission for its proposal. The salaries of the members of the appeal tribunal would be paid exclusively by the EU and the US. There will be a cabin daily fees for judges rather than leaving this to be negotiated amongst disputing parties. As is the case under the current SDS system, close quotes. Now let's start with the second part. It is factually incorrect that under the current SDS system, disputing parties negotiate daily fees of the arbitrators. That is simply not true. In some instances, I've been in situations where one of the arbitrators through the secretary will tell the parties we believe that our stipend is not enough. We would invite the parties to consider paying us more. And in the case in which the secretary called me to ask me for that, I said you can tell the arbitrator that we're not paying him more if he thinks that it's insufficient that he could decline the appointment. But that is a very exceptional situation. And I don't know whether Lucy, Mark, or Georgia have experienced that, but in practice, this is not up for negotiation. So I don't know really where the commission is coming from when it says that the new proposal will avoid the current practice of negotiating the fees of the arbitrators. But more importantly, the proposal that the fees of the arbitrators will be paid exclusively by the states, that will not inspire confidence in the investors. How does that contribute to the legitimacy of the system? Arguably, it has the opposite effect. The investors, or at least some of the investors, will be quite skeptical of a system in which the arbitrators, or the judges, will be beholden to the states because they're being paid by other states and appointed to these permanent bodies. There's also a defense for the system based on small and medium-sized enterprises, but in the interest of time, I will skip that because I haven't really come to the worst of it. The EU's fact sheet done investment. This is a separate document from the one that I have been quoted up until now. It's a document that's un-dated, but it was also issued by the commission. In fact, let me go back one. I think I may have time for this. It says here that one of the reasons why they want to set up this new investment core system is because it will enable the governments and the investors to resolve it and dispute in a fair and impartial way. Was this not pursued and achieved through the traditional or existing system? Is it not fair and impartial under the current system? It also says that it addresses the concerns that have been expressed about the lack of legitimacy and transparency. What exactly are those concerns about the lack of legitimacy and transparency in the existing system? It is not substantiated, it is unfounded, and it is based on misinformation. Later, on that same document, the commission makes the following quite remarkable observations. It says that there are concerns that the ISDS proceedings are conducted in secret and tainted by bias and conflicts of interest. It also says that some stakeholders are concerned that ISDS tribunals are generating consistent and sometimes biased practice and their decisions should be subject to review. Making these serious and unsubstantiated remarks is serious. BEU and each of its member states are pandering, in my opinion, to those who unjustly criticize the system by portraying it as a system that is biased in favor of investors and against states. Those criticisms are simply not formed by the facts and Lucy has put up some of statistics and I also, you've seen the same sources, Lucy. That's the risk of going last in the panel. I had the same statistics that made exactly the same point that Lucy made. It's simply not true that the system is biased in favor of investors and against states. In fact, if anything, I think the investors could say that the system is biased against them if one simply takes the results of these cases. Let me try to skip, so I know that I am practically out of time and I want to point out perhaps a few more things that are concerning on the proposal. Are there shortcomings from the BEU proposal? I mentioned that the arbitrators or adjudicators are appointed exclusively by the states and this is problematic for at least two ways. I mentioned one of them, the loss of confidence and legitimacy, the very thing that the commission reports to seek. But also and importantly, it is incompatible with the exit condition, the exit additional facility rules and the unsearchable arbitration rules. And these are the rules that the same proposal from BEU would apply if the parties so choose. So how is it possible that the parties will apply the exit convention or the unsearchable rules or the additional facility rules and at the same time, exclude the investor from selecting the arbitrators or at least one of the arbitrators that would sit in the tribunal. It is also incompatible with the finality of the awards that is called for by the exit convention. The exit awards are binding with the disputing parties may not be appealed that are not subject to any other post-award grantee except the ones that are explicitly indicated in the convention. So how will that be compatible with the idea of an appeals mechanism? Let me go to my conclusions. I will skip through the other commentary that I had. It's been, there are many other criticisms that we could go into but in the interest of time, I will jump to my conclusions. Now, whatever the merits of a permanent tribunal and appeals mechanism, there may be, and there are some. I think that the ones that the commission has put forth or the ones that the commission professed past being the merits are really not ones that come out of their proposal. The U-Proposals has done, in my opinion, at the service to the idea of a permanent tribunal and appeals mechanism because through its proposal, it has unwittingly cast both ideas in a bad light, at least when an informed person reviews the proposal and contrasts that proposal with the reality that we face every day when we litigate these cases. It sets about to fix a problem that has been greatly exaggerated by the critics and the detractors of the system or that it's simply based on misinformation. It seeks to make fundamental changes to ISDS when the apparent problems and discontent necessitate a different remedy. One that could be accommodated under the existing system and one that goes mainly to the substantive protections and not so much to the way in which the ISDS system has been decided. Now, I move with the following. The topic of this panel is defending investment arbitration. Is it a lost battle? And we have been asked to consider whether there's a shift towards this appeals mechanism and standing by. Is there truly a shift? Yes. As far as the EU proposal is concerned, there's a shift. Will it be pushed through by the EU? Likely yes. It surely will not abandon it now that it has tabled that proposal and has worked it into agreements that have been signed and ratified but are waiting implementation. But for the sake of the future of the ISDS system, serious adjustments will need to be made to what the EU has put on the table. And many unanswered questions remain, including how is this compatible with the instruments that the EU caused to be applied in the same document in which it has proposed these radical changes? Will this proposal be embraced and replicated by other states in their agreements? That remains to be seen. Will there be changes to the ISDS as we know it? On that will be so. And many of those changes are really necessary and called for. The real question is what those changes will consist of and whether they will do more damage than good. And in my submission, what the EU has put on the table will do more damage than good. Thank you. Because I found that really, really interesting and I'm sure some of you will have questions. So I'm going to eat into your coffee time and I know you all need to prepare every time when you're a quick one. You have to bring it back in. But out of the quick questions, you really want to make a quick one. Thank you. Thank you. Thank you. I have a question for you, Mark. So can you give your name? Hi, yes, I'm from UCL. I have a question for Mark. You talked about expropriation and you talked about the protocol or one of the European chemical mentioned. And it is about the protocol one that stress the public interest, right? But it itself did not give the definition of what the public interest is. So you also mentioned the cases of the Zimbabwe cases. I wanted to know in the arbitration practice, do you refer back to the domestic law to say, well, here's some X, here's some, well, we can't know some public interest. We can't figure out the public interest from the domestic law. Or you have a different test. You have a kind of neutral test to say, well, to judge that. So your laws have some problems, have many problems, and this laws cannot represent the public interest. So what's your, what's your point? Thank you. Thank you for the question. I've never thought about whether there might be a distinction under domestic law, whether a state might put something forward as a public interest that is unique to that particular state. It may not exist anywhere else. In most cases, you know, you're talking about regulations for health, safety, for the environment, and they fall into these broad categories of which there's broad consensus, at least as a category, that's a public good. But, you know, there are some states that have particular, you know, religious government. There might be a public interest that exists there. There was put forward there that isn't in another state. I mean, I think it comes down to when you're talking about the tribunal doing the balancing test and taking this public interest into consideration. I think it matters less whether you're looking at the domestic law source or international law source for the definition of the public interest, as opposed to simply, is this something that is a public good in this category? And that we think is legitimate to weigh against the economic rights that are asserted by the investor. So, you know, so there's no test that says when you talk about public interest, look to the domestic law or it's an international law test. I've never seen that put forward. One could imagine a situation where a state relies on its domestic law and puts forward in a public interest that is unique to that state. But ultimately it will come down to the tribunal and determine whether it is credible and whether it gives that some weight and legitimacy in the context of this balancing test. Lucy, is there a different answer on enforcement? I guess potentially depending on the jurisdiction, it's always going to be jurisdiction specific. And the only example I can think of in terms of states, specific was maybe a part time in terms of the history of South Africa. That was an immediate thought of something that you could have that there was a public interest promoting diversity or a public action in some states that may be more acute than others in part of their history. But that's not really an enforcement specific point. It's just more broadly. So remember Article 5 of the New York Convention, the first part of the policy of the state of enforcing courts of tension in there. There are open, let me see. I don't know. Say for cookies. I've known I'm on the other land here. I asked this as an open question. There was a reference or two references to the impact of stats. How would you respond to those who say the same impact of stats provide that once a case goes to merits, 60% of cases are decided in favour of the investor? How that tallys with the narratives that you provide? Well, the joy of statistics, of course, is what you put in. But in terms of the 60%, if that's true, that sounds broadly right. The question is, if the investor prevails in that 60%, what is the quantum of which they're recovering? And I believe the statistics in relation to the quantum is that it's generally 10% to 30% of what they've claimed. So even in that 60% of cases where you win, it's not the $20 billion outcome that people are fearing, often it's much smaller. And there's an American academic called Susan Frank who's written quite a lot about statistics. And I think she's updating her research. And I'm really looking forward to the next iteration of that because she goes into these points in quite a lot of detail. Well, I think she's saying one thing. Yeah, something. And I would turn the question around and say, what's wrong with the 60% of statistics? There's nothing inherently wrong in a system that will decide more in favour of one party than the other. If that were the measure, then the WTO system will have to be terminated immediately because more than 80% of the cases that go to a panel find a violation of one of the substantive rules. The system is put in place so that it enforces the rules that exist. And like I said, one of my clients last week in a conference said, well, if we lose, it's because we probably deserve to lose. We're so hard to like, I think. I don't know, no, I think it was fascinating. And the question is the fight for investment arbitration able to succeed, I think yes. But I don't think that it has to be done really on practical legal issues. That's a political fight. And it has to be, if it has to be won, you will not be won by us, to be won by the investors. Because as it was very well said by the ratio, all the speech of the EU lack of motivation and they know it lacks of motivation, but they are supported by the public opinions in European countries, they are supported by the media and they will continue and they will go until the investors really say, well, we need the true protection and we do not want the court of a number of judges badly paid by the state, that's the problem. The other aspect is that international arbitrators should also, as George said, be more cautious in the interpretation of treaty. This treaty was not, we are not made to favor the investor. They were negotiated by the state, not by the investor. The investor had no input in the negotiation of the state. And I think that if we come today, in the coming years, with more awards, which really respect that, probably there will be less intellectual tool for those who are taking this method of negotiation. That's really hard, thank you. I was going to get to my old alcohol, can we talk a little bit? Jamie Schrupp, I'll just, on this point about a shift to a court. One thing that I have sort of noticed is that the whole dialogue is at extremes. It's either the current situation or the investment code, which is completely at end. But I find that conventions like the un-clause are actually instructive here. They've shown that if you provide a menu of options, actually a system can work. And so I wondered why no one in the dialogue is talking about things like career arbitrators who form panels. I mean, is it enough signatories to provide enough case load for these people to be employed full-time and more? And in fact, having less amount of work could increase efficiency of awards. So you have a system that actually addresses a lot of these problems. And you'll create more systems for precedent because you'll have, when you have career judges, career arbitrators, you tend to have precedent, more respected, legitimacy concerns, transparency concerns as you see the academic writings of these people. So maybe that's something that also needs to factor in the dialogue. What's the middle point here between these extremes? Did you announce the vote? Yeah, I mean, I don't necessarily disagree with that. I think it goes back to the fundamental question, which is we have to recalibrate what it is that we think we're labeling under. And so I think those are good ideas, but I think we may have to go back to the drawing board or at least to say, this was the drawing board. Can we bring under that initial rubric these new ideas? There are some merit to that. Sometimes I think we take lessons also from some of our virtual bodies that aren't necessarily overworked or haven't actually had the kinds of caseloads that might lead to some of the problems we're seeing in the exit context. But I think, yeah, I mean, I think every avenue is worth exploring rather than just willy-nilly assuming something is broken. I think you have to have some sort of prescriptive outlook as well. Stakeholders have a responsibility. A lot of law firms, a lot of arbitrators have taken position. They weigh a lot of the hat. And there's the state arbitration. That is a council member of arbitrators, because that's been a criticism of the system. So, you know, we as stakeholders need to be responsible. Charles-Marie Stéphane de Bourguin says, the quick question to build on what's a problem Mr. Meryl has just made regarding the fact that the idea was negotiating between states. I went to a long time in Paris in which the intervention was about the BITs and the fact that the philosophy of the BITs are to promote and protect investment. So it is, at the same time, the arbitrator, as I said, taking into account the fact that they are the philosophy of promotion and protection of an investor, but also that it's negotiate between states, so I'm not quite sure of which way they have to go for. And that's where Professor Reesman's speech is particularly interesting. That is, the compact, it's protection by states of the property of its peoples outside of the state territory. So it's both that public-private marriage, which we sometimes struggle to develop. Perhaps I would add that we cannot forget that, I could just raise my word. We must not forget that international investment agreements are not the only basis of consent for the cases that go through the system. I have no reflection of the precise figure, but I think it's over 10% of the cases are based either on a direct agreement between the state and the investor, or on a local instrument that grants the investor the right to sue the state before international tribunal. So it's not always that you have a direct negotiation only between states. Sometimes the investor also has to say and wants to put in those agreements. No, you're lucky last. I have a question, maybe for Lucy, but also for the rest of Japan, for suggestions on how this rule should be reformed. And given what we've talked about before, and it's not, I know there's been a different war, but is it time for the situation to happen with the criticism of IOTS and the direction in which they're going to be determined to go? Oh, it's a great question. Thank you. And I think it touches on the point here about the menu of options. And I think we should all be receptive to think about ways that we could be doing it better. The challenge with convention amendment is that we have what, 160 something states that are ratified and that all need to re-ratify an amendment to the convention. So it might be unworkable, there might be a separate protocol. But Ixid is certainly alive to these criticisms which are increasingly vocal of the investor state system. Not always, I liked Patricia's phrase, unsubstantiated, unfounded and misinformed. But that's the dialogue and we're all trying to catch up and Ixid's partly trying to listen to that dialogue and take the good points and then reform it. So I'd be open to the idea of reforming the system with the footnote that when you have a multi-state convention amendment, it's always tricky. But I'd welcome views from other parents on that point. I think everybody agrees. These slides, these speeches and these slides were spectacular and there's a lot more information in the slides that didn't come up in the short term so I'm going to get the organized slides to circulate those all to put them up on the website. Can I just ask you all to think about 10 more things? First of all, listen to what we've heard today about what the EU is doing. Listen to what we've just said about how the losers of the system, the beneficiaries of the system may react better, how they react better. And I want to call to your political activism as opposed to simply your legal responsibility or your legal affinity. And if nothing else, the Trump election and indeed Brexit, I mean personally, have turned on a switch of political activism. I'm looking now at what I can do to prevent the train heading in the direction which I'm always heading in. And perhaps one of those things, for those of you who are based in London or thinking about becoming based in London, perhaps Brexit is an opportunity. London won't be partied to these new treaties with this investment core with this appellate mechanism that the EU is negotiating unless they choose to enter into those treaties. So that makes London as a seat within Europe all the more appealing both for investors and for states and for inter-relationships. So perhaps we can make lemonade out of that, particularly lemon. Perhaps it can even enhance London as a natural seat. And this is the quote, brought back to eggheads to leave you with that came from the end of the Mayan conference, a leading Indian arbitration, a former economic president, Safali Nariman. She said that international law may not have achieved much, I'm not sure I agree. But it is good that it's there. And she added that eggheads may have done more to contribute to the difficult objectives of the world longer than those who make fun of us. Thank you for the conference and for working with you. You're welcome back. Thank you and round of applause for our last speaker. Does he treat me? Can you?