States and foreign investors are facing exceptional circumstances that raise a range of issues concerning the scope and application of international investment law protections.
Throughout 2020, States have implemented unprecedented measures to respond to the COVID‑19 pandemic. Shortly before this health emergency, protests had erupted on the streets of cities all around the world. These protests had different triggers: in Algeria, a president’s fifth term; in France, an increase in fuel tax; in Hong Kong, an extradition bill; in Lebanon, a tax on WhatsApp; in Spain, a judicial decision concerning Catalonian political leaders.
The measures taken by the governments concerned in order to address these crises have been as diverse as the crises’ triggers. In all cases, however, the turmoil severely affected the operations and profits of foreign investors. In all cases, the turmoil raised complex legal issues regarding the limits that international investment law imposes on the measures that States may lawfully implement to protect a variety of national interests.
Foreign investors must know the level of protection they enjoy under international law and the remedies available to them for the damages they have suffered. States need clarity on the measures that public international law requires them to take to protect foreign investors in times of turmoil. States also need guidance on the potential defences they might be able to raise in response to foreign investors’ claims. They all would benefit from legal certainty regarding the scope of the relevant rights and obligations under both treaty and customary law.
The speakers for this seminar were:
Álvaro Nistal, Counsel at Volterra Fietta, who will moderate the seminar. A civil and common law qualified lawyer, Mr Nistal advises States, international organisations and private entities on a wide range of public international law matters. He regularly represents States and foreign investors in major investment treaty arbitrations. He also represents and provides States in Africa, Latin America, the Middle East and Southeast Asia with advice on proceedings before the International Court of Justice.
Jure Zrilic, a Lecturer at the School of Law and Social Justice at the University of Liverpool, who will discuss host States’ obligation to protect foreign investors against violence in times of social unrest. Dr Zrilic will also reflect on the concepts of due diligence and force majeure, and how they relate. Dr Zrilic’s research interests focus primarily on international law, international investment law and international arbitration. He has published widely on the protection of foreign investments in times of armed conflict. His monograph on this topic was published with OUP in 2019.
Angela Ha, a Senior Associate at Volterra Fietta, who will discuss the doctrine of police powers and the sovereign right to regulate in times of national emergency and crisis, with reference to key case law and recent events. Ms Ha advises governments and private clients on a wide range of contentious and non-contentious public international law issues. She has acted for States before the International Court of Justice and for both investors and States in investor‑State arbitrations involving the energy, financial services, manufacturing, mining and media sectors. Ms Ha currently represents an EU member State in a number of investor-State disputes concerning consumer credit measures taken in the aftermath of the 2008 global financial crisis. She also has lectured in international investment law and public international law at University College London and SOAS University of London.
Sameer Sattar, founder of Sattar&Co, who will discuss the general principles of State responsibility and potential defences that States may raise in response to foreign investors’ claims. Mr Sattar’s practice primarily involves corporate and commercial advisory work and litigation. He has also worked on and appeared as counsel in several international arbitrations held under the auspices of the ICC, UNCITRAL, LCIA, SIAC and ICSID rules. He has extensive experience both in commercial and investment treaty arbitration. He has appeared as an advocate before numerous arbitral tribunals. Mr Sattar has particular expertise in public international law and has acted in disputes involving States and State entities. Before founding Sattar&Co, Mr Sattar worked in a major international law firm in London focussing on investment law and arbitration.
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