28th February 2019

Summary of SOAS Arbitration Public Seminar of 28th February 2019

The penultimate SOAS Arbitration Public Seminar for this academic year was held on 28 th February 2019 at SOAS, University of London. It was organised and chaired by Dr Emilia Onyema. We welcomed Ms. Eunice Shang-Simpson, MCIArb, Founder of Shangress International (Consultancy) Ltd and former Specialist Prosecutor at the Crown Prosecution Service, as our guest speaker. She critically discussed the participation of African States in the work of UNCITRAL (United Nations Commission on International Trade Law).

She set the scene by introducing UNCITRAL, a subsidiary body of the General Assembly of the UN which deals with the laws applicable to private parties in international transactions. UNCITRAL has sixty States Members, with five regional groups represented in the Commission including the African States group.

The presentation continued with an introduction of Working Group III (WG III), which commenced its work in November 2017 in Vienna. This is a group tasked by the UNCITRAL Commission to deal with the possible reform of the Investor-State Dispute Settlement (ISDS) regime. She discussed WG III’s three stage mandate, which is: (1) to identify and consider concerns regarding ISDS; (2) consider whether reform is desirable in light of any identified concerns; and (3) if the Working Group were to conclude that reform was desirable, develop any relevant solutions to be recommended to the Commission.

Next, Ms. Shang-Simpson addressed the concerns raised by African States in the first stage of the mandate which took place during the 34 th and 35 th sessions. Most notably, she drew attention to the high costs of ISDS that are paid with public funds – a difficult justification for developing States with scarce financial resources. In the second stage, during the 36 th session, WG III concluded that the development of reforms by UNCITRAL was desirable to address the concerns relating to three broad categories, namely those pertaining to lack of consistency, coherence, predictability and correctness of arbitral decisions by ISDS tribunals; those pertaining to arbitrators and decision makers; and those pertaining to cost and duration of ISDS cases.

She explained that the next stage will take place in April 2019 in New York, where WG III will consider any concerns that were not addressed due to lack of time, as well as the issue of third-party funding. Governments are encouraged to consult and submit written proposals for the development of a workplan in time for the next session.

Ms. Shang-Simpson concluded her presentation with suggestions on how African States can ensure that their voices are heard clearly in the ongoing debate. She recommended that they engage actively with the process, both as States Members and Observers, that they apply to the UNCITRAL trust fund if needed, for travel assistance to ensure their attendance, that they form collaborative alliances, and that they lead by example in instructing suitably qualified African arbitrators to address the issue of lack of diversity.

Ms. Shang-Simpson’s presentation was very well received judging by the quality of the Questions and Answers and animated discussions that followed during the drinks reception. The drinks reception was kindly sponsored by Dr Emilia Onyema and organised by Ms. Ancuta Faur and Ms. Anna Csepanyi, President and Alumni Relations Director of the SOAS Law Society, respectively.

Our final seminar in the series will be held on Thursday 28 th March 2019. We will welcome Mr. Solomon Ebere, Senior Associate at Omnia Strategy LLP who will discuss the involvement of Small States in international arbitration and the costs in international arbitration.

This summary is produced by Ms. Ancuta Faur (SOAS, LLB; Student in the Law of Commercial Arbitration Module).

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31st January 2019

Summary of SOAS Arbitration Public Seminar of 31st January 2019

The third SOAS Arbitration Public Seminar for this academic year was held on 31st January 2019 at SOAS, University of London. It was organised and chaired by Dr Emilia Onyema with approximately thirty people in attendance. We welcomed Dr Sally El Sawah, Independent Lawyer and Arbitrator, as our guest speaker. She examined and questioned investment protection and the Host State’s right to regulate.

In the context of her presentation, Dr Sally discussed several investment related conventions, bilateral and multilateral investment agreements with a focus on the ICSID Convention 1965. After defining investment protection and various concepts such as Host State, Dr Sally gave a better understanding of different approaches, such as the Calvo doctrine and the Hull formula, that helped the panel understand the history of investment protection. Additionally, Dr Sally gave the foundations of the State’s right to regulate, such as the 1974 UN Charter of Economic Rights and Duties of States, the ICSID Convention, sovereignty and territorial jurisdiction as well as customary international law. Investors being victims of states wrongful acts such as expropriation without compensation led to diplomatic protection where this wrongful act contrary to international law was made to an individual of the injured state became a state- to-state matter. Dr Sally gave the example of The PCIJ Chorzow factory judgment and the ICJ Barcelona Traction Judgment. Dr Sally discussed issues such as expropriation (direct and indirect) of foreign investments, fair and equitable treatment and corruption, claims under the latter leading most ICSID tribunals to dismiss all claims. She discussed several investment arbitration awards and ICSID cases including: Santa Elena v Costa Rica, Saluka v Czech Republic, LG&E International Inc. v The Argentine Republic, World Duty Free Company v Republic of Kenya, Metal-Tech Ltd v Republic of Uzbekistan, Churchill Mining PLC and Planet Mining Pty Ltd v Republic of Indonesia, Vladislav Kim and others v. Republic of Uzbekistan and Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya. Dr Sally discussed the importance of an investment to be in accordance with the laws of the host state in order to be protected. At the end of the presentation, concluding that arbitration is the cornerstone of the system, Dr Sally animated a discussion around the most frequently debated questions such as arbitrators’ lack of accountability and legitimacy, the imbalanced system in favor of investors and a reconsideration of the principles governing compensation.

Dr Sally El Sawah presentation was very well received judging by the quality of the Questions and Answers, animated discussions that followed and discussions during the drinks reception. The drinks reception was kindly sponsored by Dr Emilia Onyema and organised by Ms Ancuta Faur and Ms Shu Cean Chua.

Our next seminar in the series will be held on Thursday 28 February 2019. We shall welcome Ms Eunice Shang-Simpson, University of Kent, who will discuss the Participation of African States in the Work of UNCITRAL.

This summary is produced by Mr Samuel Nzolantima (SOAS LLM, International Law; Student in International Investment Law module)

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29th November 2018

Summary of SOAS Arbitration Public Seminar of 29th November 2018

The second SOAS Arbitration Public Seminar for this academic year held on 29 th November 2018 at SOAS, University of London. It was organised by Dr Emilia Onyema and chaired by Martin Lau with approximately fifty people in attendance. We welcomed Judge Edward Torgbor, a Visiting Academic at Oxford University, Professor of Law (Stellenbosch University), a specialist international and chartered arbitrator and mediator based in Nairobi (Kenya), as our guest speaker. He examined and approached the question of the application and implementation of the New York Convention (NYC) in the 21st century through five points: The value of arbitration for solving disputes; the international commercial arbitration and its evolution in the global economy; the international conventions and their link with national legal systems; the impacts and importance of the New York Convention; the Enforcement of International Arbitral Awards in sampled African states.

In the context of his presentation, Judge Torgbor discussed the importance of the NYC as a legal instrument that recognises and enforces arbitral awards worldwide. By giving the origins of the convention as being related to previous treaties such as the Geneva Protocol of 1923 and the Geneva Convention of 1927, Judge Torgbor states the improvements introduced by the NYC. The interrelationships between the NYC and the Washington Convention (1965) and the UNCITRAL Model Law (1985) being acknowledged, Judge Torgbor pursues his intervention. The substantive provisions of the NYC, the interaction of the NYC with the Rule of Law having been assessed, Judge Torgbor emphasizes its importance, role and relevance in contemporary arbitration practice. In order to assess these aspects, examples from African jurisdictions were given. Judge Torgbor concluded by drawing attention to the advantageous position of the rich countries and their investor agencies and nationals not only to the direct access and exploitation of the natural and other resources of developing countries but also to their assets located in those powerful states, and the need for developing states to ensure that the impact of the international legal instruments to which they accede is not detrimental to their developing agendas.

Judge Torgbor presentation was very well received judging by the quality of the Questions and Answers, animated discussions that followed and discussions during the drinks reception. The drinks reception was kindly sponsored by Dr Emilia Onyema, and organised by Ms Ancuta Faur and Ms Shu Cean Chua.

Our next seminar in the series will be held on Thursday 31 January 2019. We shall welcome Dr. Sally El Sawah who will speak on Investment Protection and the host State’s Right to Regulate.

This summary is produced by Mr Samuel Nzolantima (SOAS LLM, International Law; Student in the International Investment Law module).

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25th October 2018

Summary of SOAS Arbitration Public Seminar of 25th October 2018

The first SOAS Arbitration Public Seminar for this academic year held on 25 th October 2018 at SOAS, University of London. It was organised by Dr Emilia Onyema and chaired by Mr Ian Edge with about 70 people in attendance. We welcomed Mr Hussein Haeri, Partner & Co-Head of International Arbitration at Withers LLP, as our guest speaker. He examined and questioned the following five controversies in investment treaty arbitration: (1) Does investment treaty arbitration undermine sovereignty? (2) Are national courts more suitable than arbitral tribunals to resolve investment treaty disputes? (3) Do States mostly lose investment treaty arbitrations? (4) Does investment treaty arbitration lack transparency? (5) Are there better alternatives to investment treaty arbitration?

In the context of his presentation, Mr Haeri discussed several investment related conventions, bilateral and multilateral investment agreements including: the ICSID Convention 1965, the Vienna Convention on the Law of Treaties, 1969, Indian Model Bilateral Investment Treaty 2015, South African Protection of Investment Act 2015 (in effect 13 July 2018), UNCITRAL Rules on Transparency and the Mauritius Convention, He also discussed several investment arbitration awards and cases including: ELSI case (USA v Italy), ICJ Reports, 1989, Swisslion DOO Skopje v The Former Yugoslav Republic of Macedonia, ICSID Case No ARB/09/16, 2012, Yukos Universal v The Russian Federation, UNCITRAL, 2012, Saipem SpA v The People’s Republic of Bangladesh, ICSID Case No ARB/05/07, 2009, Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos SA v Oriental Republic of Uruguay, ICSID Case No ARB/10/7, 2016, Global Trading Resource Corp and Globex International, Inc v Ukraine, ICSID Case No ARB/09/11, 2010, Ansung Housing Co, Ltd v People’s Republic of China, ICSID Case No ARB/14/25, 2017, World Duty Free Company v Republic of Kenya, ICSID Case No Arb/00/7, 2006, Metal-Tech Ltd v Republic of Uzbekistan, ICSID Case No ARB/10/3, 2013, Hesham Talaat M. Al-Warraq v Republic of Indonesia, UNCITRAL, 2014, and Churchill Mining PLC and Planet Mining Pty Ltd v Republic of Indonesia, ICSID Case Nos ARB/12/40 and 12/14, 2016.

Mr Haeri’s presentation was very well received judging by the quality of the Questions and Answers and animated discussions that followed and during the drinks reception. The drinks reception was kindly sponsored by Dr Emilia Onyema, and organised by Ms Ancuta Faur and Ms Shu Cean Shua.

Our next seminar in the series will hold on Thursday 29 November 2018. We shall welcome Judge Edward Torgbor of Christ Church College, University of Oxford, who will examine the New York Convention at 60.

This summary is produced by Ms Ancuta Faur (SOAS LLB, Final Year; Student in the Law of Commercial Arbitration Module).

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