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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