Transforming the Investment Treaty System through Joint Termination and Amendment

Date: October 14, 2013 6:30pm – 09:00pm
Location: Chadbourne & Parke, 30 Rockefeller Center, New York, 36th Floor Board Room

The field of international investment law has been shifting rapidly in the last 15 years. Some states have chosen to unilaterally terminate investment treaties and/or withdraw from the ICSID Convention, while others have frozen their investment treaty programs or decided against including investor-state arbitration provisions in future treaties. Other states have redrafted their investment treaties and Model BITs, moving from a previous era of investment treaties (that tended to be vaguely worded and investor-friendly) to a newer style (that tends to be more protective of the regulatory authority of host states and the interpretive powers of the treaty parties).

If states unilaterally withdraw from investment treaties, most treaties provide a sunset clause allowing the treaty protections to continue to apply for 10-20 years after notice of termination. But could the treaty parties circumvent the survival clause by agreeing to jointly terminate or amend the treaty with immediate effect? For instance, the Czech Republic has reportedly agreed with some of its EU investment treaty parties to (1) jointly terminate their investment treaties with immediate effect and (2) amend the survival clauses to state that they no longer apply. Are such actions permitted as a matter of law? Are they wise as a matter of policy?

Given the timeliness and importance of these issues, the Columbia Center on Sustainable Investment, the Center on International Commercial and Investment Arbitration, and Chadbourne & Parke’s Public International Law and International Arbitration practice group hosted a moderated discussion on the topic.

Our panelists (representatives from government, private practice, and academia) included:

· Lee Caplan, Legal Adviser, US Department of State

· Christina Hioureas, Senior Associate, Chadbourne & Parke International Arbitration and Public International Law practice group

· Thembile Joyini, Legal Adviser to South Africa’s Mission to the United Nations

· Michael D. Nolan, Partner, Milbank, Tweed, Hadley & McCloy

· Anthea Roberts, Professor of Law, Columbia Law School; Senior Lecturer in Law, London School of Economics