ICSID Secretary-General Participates in Minsk Arbitration Workshop

On November 19-20, 2012 the Minsk-based International University “MITSO” hosted a rather unusual event for Belarus.

In collaboration with the Ministry of Foreign Affairs it held a two-day investments disputes settlement workshop with the participation of the Secretary-General of ICSID and a team of outstanding Belarusian and foreign experts in the sphere of international investment arbitration.

Though Belarus entered into the ICSID Convention as long ago as 1992, the Centre has never received a single claim against the state. Despite this fact (and the rather expensive registration fee), the workshop gathered a wide audience of Belarusian scholars, practising lawyers, students and state officials. The two days at the International University “MITSO” met the high expectations of this diverse audience.

1^st Day: Introduction, Trends and Transparency

Sergey Ripinsky of UNCTAD kicked off the workshop with statistics on current trends in global foreign investment. Referring to the UNCTAD Investment Policy Review for Belarus of 2009, he pointed to fairly low FDI inflows both in absolute terms and relative to other CIS and similar transition economies. He showed that from the perspective of relative FDI inflows, Belarus is trailed only by Uzbekistan and much smaller economies such as Kyrgyzstan.

Meg Kinnear, the Secretary-General of ICSID introduced ICSID’s history and work and shared relevant statistics and her own explanations of the figures.

The audience was able to learn the latest tendencies in international investment agreements and investment arbitration both on global and regional levels thanks to Alexey Anischenko, a partner at Sorainen (Minsk), Ivan Urzhumov from Foley Hoag (Paris), Michael E. Schneider, a founding partner of Lalive (Germany) and again Sergey Ripinsky.

Quite logically, the experts then turned to arbitration rules: Meg Kinnear presented a short overview of the ICSID Arbitration rules, while Julia Salasky – a member of the Arbitration Working Group of the UNCITRAL Law Division – reviewed UNCITRAL’s rules.

After lunch, the discussion turned to a more specific topic: “Current Project Of Developing Rules On Transparency In Treaty-Based Investor-State Arbitration”. A pleasant peculiarity here was the fact that all the speakers directly participated in the elaboration of the new project, which created a feeling of being privy to insider information.

The experts explained the appearance of a need for transparency rules in cases like Biwater Gauff v. Tanzania and Methanex v. USA.  The subjects of their main attention, however, were the troublesome unanswered questions concerning transparency in investment arbitration: should the UNCITRAL Transparency Rules govern relations automatically if the UNCITRAL Arbitration Rules apply?; and should countries conclude a multilateral convention on transparency in investor-state arbitration or should the agreement for their application follow from the parties’ unilateral declaration? The questions remained unanswered by the experts.

2^nd Day: CIS Countries’ Peculiarities, Alternative Means Of Resolving Disputes, Setting Aside, Annulling And Enforcing Arbitral Awards

The second day of the workshop started with a presentation by Yaraslau Kryvoi, an international expert in international investment law who originally comes from Belarus but works in London. As the general editor of CISarbitration.com, he was the right person to provide the audience with an overview of the specific features of investor-state arbitration in CIS countries.

The experts devoted the second part of the day to alternative means of resolving investment disputes. Here, Andrea Saldarriaga – an expert on international arbitration, international investment law and development from Colombia – and Jeffrey Chan Wah Teck, a Deputy Solicitor-General of Singapore, contributed the most.

As is usual for such workshops, this one ended with a part on the setting aside, annulment and enforcement of awards in investor-state disputes. The speakers made quite clear the advantages of considering cases involving investor-state disputes in the ICSID system.

The structured overview presented by Jeffrey Chan Wah Teck and pertinent examples of Ivan Urzhumov clarified once again that in spite of the high degree of interconnectedness in today’s globalised world, sovereignty and state immunity in investor-state disputes remain burning issues.

In the course of the whole workshop, the audience had many opportunities to pose questions, which they did to a great extent. Though, as mentioned above, Belarus has never participated in ICSID arbitration, some of the questions coming from the listeners were difficult even for the outstanding speakers and were of a very practical character. The skilled moderators – Andrey Kozik, Alexey Anischenko and Yaraslau Kryvoi – ensured effective expert-audience interaction, as well as the smooth running of the whole event.

After all the wonderful moments of the conference, the listeners had one more: the host of the event, Andrey Kozik, and Meg Kinnear handed to them certificates on the workshop’s completion. But probably none of the participants could consider the certificate as the main result of these two days. They all came a step closer to their desire to become professionals in international investment law.  Let us hope they will have many other chances like this.

Darya Firsava