19. Winning Respondent Memorial: University of Buenos Aires 655
The Investment Yearbook is an annual publication published by Oxford University Press in association with the Columbia Center on Sustainable Investment. It draws on the guidance of a distinguished Advisory Board, ongoing engagement by an Editorial Committee consisting of leading academics in the field of investment law and policy, and on skillful work by an Editorial Staff of students from Columbia Law School and McGill University Faculty of Law.
The Investment Yearbook addresses legal and policy issues in the area of international investment—from national, regional, and international perspectives. The Editorial Committee invites for publication manuscripts that are of outstanding quality in terms of academic rigor, quality of the argument, originality, and contribution to the field of international investment law and policy. The Investment Yearbook will not consider a manuscript that has been published pre- viously. Every manuscript that is considered for publication will be assessed through an external double-blind peer-review process. The style of the manuscripts should be in accordance with the OSCOLA Guidelines, as adapted to the Yearbook (available from the Editorial Committee).
The Editorial Committee welcomes the submission of manuscripts to the Investment Yearbook. Manuscripts should be electronically sent to the Columbia Center on Sustainable Investment, the Editor, Prof. Andrea Bjorklund, or any member of the Editorial Committee.
Columbia Center on Sustainable Investment (CCSI): ccsi@law.columbia.edu Andrea K. Bjorklund, Editor of the Investment Yearbook
andrea.bjorklund@mcgill.ca Editorial Committee:
N. Jansen Calamita: n.j.calamita@biicl.org Abby Cohen Smutny: asmutny@whitecase.com Lise Johnson: Ljj2107@columbia.edu
Peter Muchlinski: pm29@soas.ac.uk
Ucheora Onwuamaegbu: ucheoral@gmail.com Federico Ortino: federico.ortino@kcl.ac.uk Lisa Sachs: lsachsl@law.columbia.edu
Alberto Alvarez-Jimenez is a Colombian and Canadian national who lives and works in New Zealand. He holds a Doctor of Laws degree from the University of Ottawa law faculty, and an LL.M. from McGill University. Currently, he is a senior lecturer at the Faculty of Law of the University of Waikato and also an international consultant on international law.
Professor Alvarez-Jimenez’s research agenda concentrates on public international law, interna- tional trade law, and foreign investment law. He has published more than 25 articles in promi- nent peer-reviewed journals in the United States, Germany, the United Kingdom, Canada, the Netherlands, and Switzerland. In addition, he has presented papers at academic events in North America, Latin America, Europe, and Oceania. His publications on international investment law have appeared in a previous volume of this Yearbook, in the American Review of International Arbitration, the Journal of World Investment and Trade, and the Journal of International Arbitration. The chapter included in this volume is the second part of a project dealing with the impact of the current economic crisis on international investment law. The first, titled “The Great Recession and the New Frontiers of International Investment Law: the Economics of Early Warning Models and the Law of Necessity,” was published in the Journal of International Economic Law (Vol. 17 No. 3, 517–550). Professor Alvarez-Jimenez can be reached at aalvarez@waikato.ac.nz.
Dr. Claudia Annacker is a partner based in the Paris office of Cleary Gottlieb Steen &
Hamilton LLP. Her practice focuses on international litigation and arbitration and public international law matters, including investor-state disputes, disputes involving international organizations, state succession issues, and state immunity, as well as disputes before the European Court of Human Rights. Her current work includes representing the Hellenic Republic, the French Republic, the Arab Republic of Egypt, Russia, and DP World in invest- ment treaty arbitrations and the Republic of Iraq in an interstate arbitration against the Republic of Turkey. Dr. Annacker is a visiting professor at the Paris West University Nanterre and an adjunct professor at the University of Vienna. She is widely published on various aspects of public international law and European law and has also served as an arbitrator in interna- tional arbitrations.
Preeti Bhagnani (at the time of writing: LL.M. candidate, Columbia Law School) is an Associate in the International Arbitration Group at White & Case LLP. Ms. Bhagnani has served as counsel to sovereign and corporate entities in international commercial arbitrations and international investment disputes. She was formerly a Legal Counsel at Shell and a Senior Associate at Rajah & Tann LLP. She holds an LL.B. from the London School of Economics and Political Science and an LL.M. from Columbia Law School where she was a Kent Scholar and recipient of the Edwin Parker Prize for International or Comparative Law. She is admitted to the bar in Singapore and New York.
Nicholas J. Birch is an Associate at the Law Offices of Stewart and Stewart in Washington, D.C., and a J.D./M.B.A graduate from Georgetown University. Mr. Birch has practiced in trade remedies and international investment law and arbitration. He has also been involved in research and writing on international investment, arbitration, and trade law and development, and has been featured in multiple books and articles.
N. Jansen Calamita, Juris Doctor summa cum laude (Boston); Bachelor of Civil Law (Oxford).
Mr. Calamita is Senior Research Fellow and Director of the Investment Treaty Forum at the British Institute of International and Comparative Law. He concurrently holds the position of lecturer in the University of Birmingham Law School. Mr. Calamita has served in the Office of the Legal Adviser in the U.S Department of State and in the UNCITRAL Secretariat. He con- tinues to counsel governments on matters relating to the law of foreign investment and inter- national dispute resolution. His research is in general public international law and the international law of investment.
Joanna Coyne is an associate in the International Dispute Resolution and Commercial Litigation groups in the Washington D.C. office of Crowell Moring LLP. In her practice, Joanna represents clients in a wide-range of complex litigation and arbitration matters, with a special focus on international disputes. Joanna has represented corporations and individuals in indus- tries, including mining, tourism, construction, healthcare, and education in disputes before U.S. courts, administrative bodies, and international tribunals. Joanna is also an active par- ticipant in the firm’s pro bono program and has focused on defending political asylum seekers, families in child custody disputes, and low-income tenants in eviction proceedings.
Martin Delaroche is a Ph.D. student in Public Policy, a Fulbright scholar, and a research assistant at the School of Public and Environmental Affairs (SPEA), the Department of Political Science, and the Ostrom Workshop at Indiana University, Bloomington. He is also a doctoral student in Geography at the Institut des Hautes Etudes de L’Amérique Latine (IHEAL) of the University Paris 3 Sorbonne-Nouvelle, France. His research focuses primarily on land property rights, large-scale land investments, and environmental degradation in Latin America. He holds master degrees in International Economic Law (University of Paris 1 Panthéon-Sorbonne, in partnership with Columbia Law School and Sciences Po Paris) and in Applied Economics (University of Paris 1).
Kabir Duggal is a senior associate in the International Arbitration group of Baker and McKenzie’s New York office. His practice focuses on investor-state arbitration, commercial arbitration, and issues and disputes relating to public international law. Mr. Duggal is also a Lecturer-in-Law at the Columbia Law School, co-teaching “International Investment Arbitration.” He serves as the head of the advisory team on matters relating to procedure on
Investmentclaims.com (Oxford University Press). He also serves on ICSID Review’s Peer Review Board and is a Fellow at the Columbia Center on Sustainable Investment. Mr. Duggal is a graduate of the University of Mumbai (University Medal), University of Oxford (DHL-Times of India Scholar), and NYU School of Law (Hauser Global Scholar). He is admitted to practice law in India, England and Wales, and New York.
Michael V. Gestrin is currently a senior economist in the Investment Division of the Organisation for Economic Co-operation and Development in Paris, France. Previously he has held research and teaching positions at the University of Oxford, ESSEC Business School, the University of Toronto, and the United Nations Conference on Trade and Development (UNCTAD). Dr. Gestrin’s main areas of research include the impact of global value chains on the organization of multinational enterprises, the globalization of state-owned enterprises, and global trends in foreign direct investment. He has a doctorate from the University of Oxford, where he examined the profitability of the international operations of multinational enterprises.
Michael Jarvis, Senior Private Sector Development Specialist with the World Bank, specializes in good governance, private sector roles in development, and multi-stakeholder approaches.
Mr. Jarvis leads programming on good governance of extractive industries, including a focus on issues of contract disclosure. Building on this work, he has overseen development of a new global initiative on open contracting to promote better outcomes from the estimated US$ 9.5 trillion in public-private contracts globally. Mr. Jarvis previously worked on industry codes of conduct and as a consultant on historical corporate responsibility issues. Mr. Jarvis has advanced degrees from the University of Cambridge and Johns Hopkins University. He is a frequent author and blogger.
Lise Johnson is the Investment Law and Policy Head at the Columbia Center on Sustainable Investment (CCSI). Her work at CCSI centers on analyzing investment treaties, treaty-based investor-state arbitrations, and examining the implications those instruments and cases have for host countries’ domestic policies and sustainable development strategies. In addition, she concentrates on key institutional and procedural aspects of the investment law framework, including efforts to increase transparency in and legitimacy of investor-state dispute settle- ment. She has a B.A. from Yale University, J.D. from University of Arizona and LL.M. from Columbia Law School, and is admitted to the bar in California.
Jürgen Kurtz is an Associate Professor and Director of Studies of the International Economic Law Program at the University of Melbourne, Australia. He researches and teaches in the var- ious strands of international economic law including the jurisprudence of the World Trade Organization and that of investor-state arbitral tribunals. Mr. Kurtz has advised the govern- ments of a number of OECD and developing countries and served as a consultant to leading regional and multilateral agencies involved in trade, investment, and development. He cur- rently serves on the editorial board of the Journal of World Investment and Trade.
Ian A. Laird is Co-Chair of the International Dispute Resolution Group in the Washington, D.C., office of Crowell & Moring LLP. Over the past 16 years, he has represented a range of clients in international arbitration proceedings involving disputes between corporations and foreign governments. He is an adjunct professor at Columbia Law School and Georgetown University Law Center. Mr. Laird is the Co-Director of the International Investment Law
Center (International Law Institute), Co-editor of the series, Investment Treaty Arbitration, and International Law (Juris Publishing – now in its eighth edition), and Editor-in-Chief of InvestmentClaims.com (Oxford University Press).
Céline Lévesque is Full Professor and Dean of the Civil Law Section at the University of Ottawa. Her primary area of research is International Investment Law. Dean Lévesque has written extensively on NAFTA Chapter 11 (Investment) and on the Canadian Foreign Promotion and Protection Agreement (FIPA) program. In 2008–2009, she was a Scholar-in-Residence at the Trade Law Bureau of the Canadian Department of Foreign Affairs and International Trade. In that capacity, she contributed to the defense of NAFTA Chapter 11 claims and to bilateral investment treaty negotiations. Prior to joining the University, Dean Lévesque worked at the World Bank in Washington, D.C. (1995–1998). She holds an LL.L.
(Ottawa), LL.B. (Dalhousie), LL.M. (College of Europe), and M.A. (George Washington).
Maninder Malli is a Canadian lawyer with diverse experience in international investment, corporate transactions, and development finance. He currently manages global regulatory compliance for a multinational technology company. Mr. Malli previously held positions with the United Nations Department of Political Affairs in New York and the World Bank (Legal Vice Presidency) in Washington D.C., and practiced law with the Canadian firm Blake, Cassels
& Graydon. Mr. Malli holds a master’s degree in International Law from New York University, a law degree from Queen’s University, and a bachelor’s degree from the University of British Columbia.
Lindsey Marchessault is a Canadian lawyer and a consultant with the World Bank Governance Global Practice. Ms. Marchessault has contributed to the launch of the Open Contracting Partnership and the development of the Open Contracting Global Principles and Data Standard. In her work, she engages with governments and other stakeholders to develop and implement strategies for improved transparency and collaboration for better project outcomes.
Previously, Ms. Marchessault worked at the International Centre for Settlement of Investment Disputes.
Lars Markert is an associated partner in the international dispute resolution department of Gleiss Lutz’s Stuttgart office. He is admitted to the German and New York bars and frequently advises Western and Asian clients in international commercial and investor-state arbitrations under most of the major arbitration rules, spanning industries such as pharmaceutical, avia- tion, commercial, and energy. He is on the Panel of Arbitrators of the Korean Commercial Arbitration Board (KCAB), on the Global Advisory Board for the ICDR Y&I, an academic adviser to the International Investment Law Centre Cologne (IILCC), and regularly teaches, speaks, and publishes on issues of international commercial and investment arbitration.
Dr. Borzu Sabahi is an attorney in the International Arbitration group of Curtis, Mallet- Prevost Colt & Mosle LLP. He represents governments and state-owned entities in complex international arbitration matters. He was recognized by the Who’s Who of International Commercial Arbitration Lawyers 2015 as a leading practitioner. He is also an adjunct professor at Georgetown and Columbia Law Schools, Co-Director of ILI International Investment Law Center, Editor of Oxford’s InvestmentClaims.com, and Co-Chair of Annual Juris Conference in Washington, D.C. His publications have been cited by arbitral tribunals and the U.S.
Supreme Court. He is licensed to practice in New York and the District of Columbia.
Lisa Sachs is the Director of the Columbia Center on Sustainable Investment. Since joining CCSI in 2008, she established and now oversees the three areas of focus for CCSI: investments in extractive industries, investments in land and agriculture, and investment law and policy.
She specializes in extractive industries, foreign investment, corporate responsibility, and inte- grated economic development. She received a B.A. in Economics from Harvard University, and earned her J.D. and an M.A. in International Affairs from Columbia University, where she was a James Kent Scholar and recipient of the Parker School Certificate in International and Comparative Law.
Frédéric G. Sourgens is an Associate Professor of Law at Washburn University School of Law.
He publishes regularly on political risk, transnational commercial law, and the theory of trans- national law. His most recent book is A Nascent Common Law: The Process of Decisionmaking in International Legal Disputes Between States and Foreign Investors (Brill | Nijhoff, 2015). Mr.
Sourgens serves as Managing Editor for Oxford University Press’ “Investment Claims”
reporter, as well as Co-editor of the series, Investment Treaty Arbitration and International Law (Juris Publishing – now in its eighth edition).
Catharine Titi is a postdoctoral research fellow at the University Panthéon-Assas Paris II.
She holds a Ph.D. in Law from the University of Siegen, Germany, and has completed earlier studies in Greece, France, and the United Kingdom. Ms. Titi also holds a postgraduate quali- fication from the Courtauld Institute of Art, London, and has previously worked in manage- ment consulting for PwC, UK. She has regularly taught international economic law and international investment law and has published in a variety of academic journals. Her mono- graph on The Right to Regulate in International Investment Law was published in 2014 by Nomos and Hart Publishing.
Dr. Valentina Vadi is Professor of International Economic Law at Lancaster University, United Kingdom. Dr. Vadi also lectured at Hasselt University (Belgium), the University of Rome III (Italy), the China EU School of Law (P.R. China), and Maastricht University (The Netherlands). She has published more than 70 articles in various areas of public interna- tional law in top journals, including the Vanderbilt Journal of Transnational Law, the Stanford Journal of International Law, the Columbia Human Rights Review, the European Journal of International Law, the Journal of International Economic Law, and others. She is the Co-editor (with Hildegard Schneider) of Art, Cultural Heritage and the Market: Legal and Ethical Issues (Springer: Heidelberg 2014), and (with Bruno De Witte) of Culture and International Economic Law (Routledge: 2015). Dr. Vadi is the author of Public Health in International Investment Law and Arbitration (Routledge, Abingdon 2012) and Cultural Heritage in International Investment law and Arbitration (Cambridge University Press, 2014).
Louis T. Wells is the Herbert F. Johnson Professor of International Management, Emeritus, at the Harvard Business School. Professor Wells has published books or articles on joint ven- tures, mining negotiations, foreign investment policy, investment promotion, and arbitration of disputes between foreign investors and host governments. Professor Wells has served as consultant to the governments of a large number of countries and as an expert in investor-state arbitrations. He is a Fellow of the Academy for International Business and a member of the Council on Foreign Relations. He received a B.S. in Physics from Georgia Tech and an M.B.A. and a D.B.A. from Harvard University.
Jason Yackee is an associate professor at the University of Wisconsin Law School. Professor Yackee’s research centers on international investment law and administrative law. He teaches Contracts, International Arbitration, and International Business Transactions.
Professor Yackee graduated summa cum laude and Phi Beta Kappa from the University of Pittsburgh, earned an M.A. and Ph.D. in Political Science (International Relations) from the University of North Carolina at Chapel Hill, and earned a J.D., summa cum laude and Order of the Coif, from Duke University School of Law where he was an editor for the Duke Law Journal. He has also studied French and European law at L’Université Panthéon-Assas (Paris-2). Professor Yackee has published articles in a variety of peer-reviewed social sci- ence journals, student-edited law reviews, and edited volumes, and he has served as Co-Chair of the American Society for International Law’s (ASIL) International Economic Law Interest Group.
Jure Zrilič is a Ph.D. Candidate in Law at the University of Cambridge, focusing on interna- tional investment law. In 2012 he worked as a White & Case Fellow at the School of International Arbitration at Queen Mary, University of London, where he conducted research for the International Arbitration Survey and supervised LL.M. students. His practical experience includes working at a The Hague–based NGO in the justice sector, and completing a clerkship at the High Court in Slovenia.
Until recently, neither politicians nor the public in rich countries have shown much inter- est in the controversy surrounding investor-state dispute settlement (ISDS). For good reason, however, interest was picking up just as this Yearbook was being assembled.
At the outset, bilateral investment agreements (BITs) and investment provisions in regional trade agreements (RTAs) were negotiated between rich countries and transition or developing countries, primarily because investors from the rich countries did not trust that the judicial systems of the latter would give them sufficient protection from adverse govern- ment action. Domestic courts in poor countries were, in investors’ views, corrupt, subject to political influence, or simply not competent. Treaties gave investors the right to bring claims against those governments in international arbitration. Since awards from international tribu- nals were to be enforceable in a wide range of countries, the resulting regime should, accord- ing to proponents, provide investors with adequate protection and encourage investments.
At the same time, some officials in rich countries were convinced that not only their inves- tors but also their own governments would benefit from the regime. With the new regime in place, they could deflect investors from demanding diplomatic support by sending them to the international system for redress. Foreign offices would be free to follow broader foreign policy interests without having to worry about defending the private interests of their multinational firms.1
While rich countries would have to agree to protect investors within their borders as well, in order to obtain bilateral agreements, officials were confident that they themselves would not face claims under the new regime. After all, they believed they already afforded the kind of protection for investors, domestic or foreign, that they were seeking elsewhere. So, no reason for controversy at home.
The rich countries pressed developing countries to sign BITs and investment provisions in RTAs.2 Sometimes, poorer countries appear to have given little thought to the proposed
1. For evidence, see Noel Maurer, The Empire Trap: The Rise and Fall of U.S. Intervention to Protect American Property Overseas, 1893–2013 (Princeton University Press 2013) 393–404.
2. Andrew T. Guzman, ‘Why LDCs sign treaties that hurt them: explaining the popularity of bilateral invest- ment treaties,’ (1998) 38 Virginia Journal of International Law 639–688.