United Nations Publishes Proceedings of W&L Law Symposium

Lexington, VA • Thursday, July 21, 2011

The symposium proceedings related to the March 29, 2010 conference on international investment and alternative dispute resolution held at Washington and Lee University School of Law are now available in a volume published by the United Nations Conference on Trade and Development (UNCTAD).

The conference, held in Lexington, Virginia, was organized and hosted jointly by W&L and UNCTAD, the arm of the United Nations focused on foreign investment and development. The Joint Symposium brought together more than 80 scholars, practitioners, and government officials from all over the world to explore the prevention and efficient management of investment treaty disputes.

The proceedings have been published in a volume titled Investor–State Disputes: Prevention and Alternatives to Arbitration. The study compiles and synthesizes the ideas addressed and explored during the symposium and also includes content from the pre-conference blog. Members of the W&L faculty, staff, and student body all contributed to the publication.

Globalization has directed trillions of dollars towards international investment.  While the flow of international capital and resources creates inevitable tensions, such as those caused when a government's regulatory efforts affect foreign investors, investment treaties ensure that disputes are funneled to an arbitration system where investors and states resolve their differences.

According to UNCTAD, the number of cases launched is now 390, with 59 already decided in favor of investors yielding cumulative awards in excess of US $3 billion.  Given concerns about the current arbitration system, which have caused some countries to withdraw from bilateral investment treaties and even to withdraw from a major multi-lateral international investment convention, re-evaluation of the arbitration system is necessary to ensure the integrity of the dispute resolution process.

The materials in the volume are intended to help stakeholders assess the investment system, understand the scope of treaty obligations, and permit informed choices by investors and States so that disputes do not escalate. Among other topics, contributors explore the current investor-State dispute settlement system in order to understand the costs and benefits of the current network of bilateral and multilateral investment treaties. 

Consideration of dispute resolution systems is particularly vital now says Prof. Susan Franck, who spearheaded the Joint Symposium.

"Just a few weeks ago, Philip Morris hit Australia with an investment treaty arbitration for Australia's efforts to create plain-packaging laws for cigarettes, which is ironic given that in April Australia rejected the use of arbitration in their future treaties," says Franck.  "The German government settled recently a billion Euro arbitration claim that arose after Green politicians placed restrictions on a Swedish company's coal plant operating in Hamburg, and the Union of South American Nations is considering how to reform investment treaty dispute resolution."

"These cases demonstrate that dispute prevention, negotiation and mediation are more important than ever," added Franck. "The ideas explored in the proceedings are a critical element of that evolving dialogue."

Investor–State Disputes: Prevention and Alternatives to Arbitration is available for download from the UNCTAD website.

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