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On April 10, 2015, former ASIL President David Caron moderated a lively discussion on “Global Public Interests in International Investment Law.” He was joined by a panel of distinguished speakers featuring Clara Brillembourg (Foley Hoag LLP), José Daniel Amado (Miranda & Amado Abogados), and Julie Maupin (Max Planck Institute for Comparative Public Law and International Law).
First, Clara Brillembourg spoke about the intersection of public health and investment arbitration through the lens of the pending tobacco arbitrations. She noted that the arbitrations brought against states arising out of public health legislation (such as the plain packaging regulations for tobacco) had a number of important consequences for States. The threat of these arbitrations created a chilling effect that discouraged States from enacting tobacco controls. These arbitrations also have provoked some States to begin reconsidering their commitments in investment and trade treaties. Ms. Brillembourg then analyzed the various options that could be taken by States, international tribunals, and third parties to address these issues.
Second, José Daniel Amaro spoke about the interplay between international investment law and affected host State populations. Mr. Amaro focused on what he perceived to be a fundamental procedural imbalance in investment arbitration. While investment arbitration accords foreign investors a unique right to enforce the obligations of a host State, it is more difficult for States to seek recourse against investors through investment arbitration (beyond raising counterclaims). Moreover, the capacity of host State populations to seek redress against foreign investors through investment arbitration is effectively nil, even though investment arbitrations oftentimes affect them. Mr. Amaro suggested that this imbalance should be corrected to grant host States populations the ability to bring claims against foreign investors through investment arbitration. He then discussed the possibilities for host State populations (1) to bring claims directly, (2) to obtain standing to bring claims as agents of the host State, or (3) to have their claim brought through espousal by an entity created by the host State.
Finally, Julie Maupin discussed six archetypes of recurrent and politically problematic disputes that arise in international arbitration. These include:
Hansel T. Pham is a partner in White & Case LLP’s Washington D.C. office where practices in the international arbitration, commercial litigation, and public international law practice groups.