On 13 March 2017, Emilie Gonin participated in a debate on the Future of Investment Treaty arbitration organised by Ciarb YMG together with students from Sciences Po’s “Economic Litigation and Arbitration” Master’s course hosted by White & Case Paris. The event was attended by over 100 students and practitioners.
She had to defend the following motion “This House believes that investment treaty arbitration will no longer exist within a decade” against Simon Maynard of Three Crowns London. She insisted inter alia on the current geopolitical context in Europe and the US and how it meant that classical investor state dispute resolution mechanisms had been abandoned in the more recent draft EU free trade agreements. She noted that this weakened the position of capital exporting countries vis-à-vis capital importing countries when negotiating new investment treaties or renegotiating existing instruments as this amounted to telling them “what’s not good enough for us is good enough for you”. She also touched upon the fact that expansive interpretation of certain standards by arbitral tribunals (such as for instance the Most Favoured Nation Clause), the absence of binding precedent and the lack of obligations for investors under most existing treaties had led to an unprecedented legitimacy crisis both in capital importing countries and in civil society.
Athina Fouchard Papaefstratiou of Lazareff Le Bars and Jiries Saadeh of Fietta debated the following motion: “This House believes that an investment treaty court is the solution to the legitimacy crisis the current investment treaty system is going through”. The two moderators were Charles Nairac, Partner at White & Case Paris and Roderick Cordara QC of Essex Court Chambers.
A full report on the debate is available on Ciarb’s website.