Investor-State Arbitration: Lessons for Asia

Author: Michael J. Moser
Publisher: Juris Publishing
ISBN: 9781933833231
Published In: August 2008
Format: Paperback , 252 pages
Jurisdiction: Asia ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book is a report on the proceedings of the Conference on Investor-State Arbitration -- Lessons for Asiawhich was held on 7 December 2007 in Hong Kong under the auspices of the Hong Kong International Arbitration Centre.

Over the past decade, the number of investor-state arbitrations worldwide, both before ICSID and in ad hoc proceedings, has grown dramatically. Investor-state arbitration has become the “new, new thing” in international arbitration. Until recently, however, Asia has largely stood apart from the explosion of activity in this field. Although most Asian jurisdictions are members of the ICSID Convention and many Asian states have entered into bilateral investment protection agreements with their trading partners, the number of investor-state arbitration cases involving Asian parties and Asian states has to date been relatively small.

There are clear signs on the horizon that this situation is set to change. More importantly, the number of bilateral investment treaties (BITS) entered into by Asia states is on the increase. Moreover, the region continues to be a magnet for foreign direct investment.

Of particular interest in this new equation is the growing importance of China, both as a destination for foreign investment and as a new capital exporter. China has to date entered into more than a hundred BITs. Moreover, in the most recent form of the Chinese BIT, the Chinese government has now agreed to accept claims directly against it for breaches of the protections offered to investors - a major departure from previous policy whereby the Chinese government would only accept international arbitration with respect to the quantum of compensation to be paid following a determination of liability under a BIT by a Chinese domestic tribunal.

Given the importance that investor-state arbitration is likely to play in Asia in the future, the Conference was aimed at providing legal practitioners and representatives from government and business in the region with an overview of the law and practice of investor-state arbitration. The HKIAC and Conference participants were privileged to have some of the world’s leading experts in investor-state arbitration address us on these topics and share with us their insight and experience.

Readers of this volume should note that the materials included here are based on a transcription of the recorded Conference proceedings and include, in most cases, the powerpoint notes that accompanied the live presentations.

Introduction
by Michael J. Moser, Chairman Hong Kong International Arbitration Centre

Opening Remarks
by Hon. Wong Yan Lung SC, JP, Secretary of Justice,Hong Kong SAR

Part I: Arbitration Involving States -- The Legal Framework (Moderator - John Savage)

Chapter 1. An Overview of Investment Treaty Arbitration by Michael Lee

Chapter 2. Choice of Law in Investment Treaties by Matthew Gearing

Chapter 3. Basic Principles of Investment Treaties by Kathryn Sanger

Chapter 4. The Role of Institutions in Investor-State Arbitration by David Rivkin

Part II Arbitration Involving States: Key Issues in Practice (Moderator - Dr Sabine Konrad)

Chapter 5. Two Hot Topics in Investor-State Arbitration by Peter Turner

Chapter 6. Expropriation by David Kavanagh

Chapter 7. Umbrella Clauses by Kim Rooney

Chapter 8. The Importance of a Party Treating as Independent Its Independent Arbitrator by V.V. Veeder QC

Part III Investor-State Arbitration: What It Means for States (Moderator - Michael Hwang SC)

Chapter 9. Practical Issues for the State by Raja Bose

Chapter 10. State Responsibility and Investment Arbitration by Kaj Hober

Chapter 11. State Approval in South East Asian Bilateral Investment Treaties by Cecil Abraham

Chapter 12. The Defence of Necessity by M. Sornarajah

Part IV Investor-State Arbitration: What It Means for Investors (Moderator - Neil Kaplan QC)

Chapter 13. Lessons for Asia by Karen Mills

Chapter 14. The Case of China by Zhang Yuqing

Chapter 15. Some Final Thoughts by Alastair Henderson

Appendices

Contributors

Conference Powerpoint Presentation Contained on CD

About the Editor:
Michael J. Moser is Chair of the Hong Kong International Arbitration Centre and a Partner of O'Melveny & Myers in Hong Kong and Beijing. Resident in China since 1980, he frequently acts as arbitrator in disputes between Asian parties and multinational corporations. Mr. Moser is Vice President of the Asia Pacific Regional Arbitration Group (APRAG) Co-Chair of the China Arbitration Forum and a Vice Chair of the IBA Committee on Arbitration. He is a member of the panel of arbitrators of CIETAC, the HKIAC, the SIAC, the AAA/ICDR and other leading institutions. Mr. Moser serves as adjunct Professor of Arbitration Law at the City University of Hong Kong and is General Editor of the Journal of International Arbitration. Mr. Moser is a graduate of the Harvard Law School and holds a Ph.D. from Columbia University. Mr. Moser is a graduate of the Harvard Law School and holds a Ph.D. from Columbia University.

Contributors:
Dato’ Cecil Abraham, Zul Rafique & Partners, Advocates & Solicitors

Raja Bose, Watson, Farley & Williams, Singapore

Matthew Gearing, Allen & Overy, London and Hong Kong

Alastair Henderson, Herbert Smith, Bangkok

Kaj Hobér, Mannheimer Swartling, Stockholm

Michael Hwang S.C., International Arbitrator, Singapore

Neil Kaplan CBE, QC, Hong Kong International Arbitration Centre

David Kavanagh, O’Melveny & Myers, London

Sabine Konrad, Dewey & LeBoeuf, Paris

Michael Lee, International Arbitrator

Karen Mills, KarimSyah, Hong Kong

David W. Rivkin, Debevoise & Plimpton, New York and London

Kim Rooney, White & Case, Hong Kong

Kathryn Sanger, Clifford Chance, Hong Kong

John Savage, Shearman & Sterling, Singapore

M. Sornarajah, Faculty of Law, National University of Singapore

Peter Turner, Freshfields Bruckhaus Deringer, Paris

V.V. Veeder Q.C., Essex Court Chambers, London

The Hon. Wong Yan Lung, SC, JP, Secretary for Justice

Yuqing Zhang, Attorney and Law professor, Advises international companies on Chinese Law

Praise for Investor-State Arbitration -- Lessons for Asia

"It is rarely the case that an international conference devoted to dispute resolution presents papers not only on specialised subjects and current developments but also on core principles. Specialist practitioners rather than neophytes are therefore the principal beneficiaries of the presenters' collective wisdom[.....] This collection of conference papers breaks the mould. It discusses not only specialised topics in international investment arbitration but also more basic or general matters. It is therefore a primer on the topic[....] The usefulness of this book as a one-stop primer on ICSID dispute resolution is enhanced by appendices containing the ICSID Convention and Rules[....]This book is presented as 'HKIAC Special Publications Series No. 1'. Subsequent publications in this series will hopefully meet the standard established by this compendium."

- Asian Dispute Resolution, July 200