TRAINING COURSE ON MANAGING INVESTMENT DISPUTES FOR LATIN AMERICAN COUNTRIES Montevideo, Uruguay, November 2007 COURSE PROSPECTUS

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1 TRAINING COURSE ON MANAGING INVESTMENT DISPUTES FOR LATIN AMERICAN COUNTRIES Montevideo, Uruguay, November 2007 With a preparatory distance-learning course on key issues in international investment agreements 24 September - 26 October 2007 COURSE PROSPECTUS Background information: International investment disputes arising from investment agreements are on the rise (see the IIA Monitor on Latest Developments in Investor-State Dispute Settlement released by UNCTAD in December ). They cover a wide range of economic activities and various types of foreign involvement, and relate to key provisions in investment agreements. Since more investment may lead to more occasions for disputes and more occasions for disputes combined with more international investment agreements (IIAs) are likely to lead to more cases, the number of disputes is likely to grow. The increasing prominence of complicated infrastructure projects is also relevant here. The increase in disputes may also reflect an apparently growing tendency among foreign investors to litigate, following well-publicized claims. Consequently, governments need not only to be judicious in negotiating IIAs and sensitive to actions that could trigger litigation, but they also need to follow closely the development and the management of such disputes when they arise. This relates especially to developing country governments that are often unprepared when faced with investor claims and have little or no experience in the management of disputes. In addition, they often lack both the institutional and practical expertise to deal with them. This could lead to potential risks (given the amounts at stake), negative effects on development and adverse effect for the international treaty system. The UNCTAD secretariat having already developed a successful course on negotiating international investment agreements in all regions has therefore developed a course with a view to equip especially developing country governments with the necessary capacity to manage investor-to-state disputes and to be able to mobilize the necessary expertise to assist them in the proper conduct of such procedures. Two courses for Latin American countries already took place in October 2005 in Washington and in October 2006 in Puebla. 1 See 1

2 Region: Latin America Language of Instruction: Distance-learning course: Spanish Face-to-face course: English and Spanish Duration: Distance-learning course: 5 days over 5 weeks Face-to-face course: 8 days Date and venue: Preparatory distance-learning course on IIAs: 24 September - 26 October 2007 Face-to-face course on managing investment disputes: November 2007, ALADI secretariat, Montevideo, Uruguay Participants: Participation in the face-to-face course is open to a group of 25 officials from Latin American countries negotiating IIAs and dealing with claims introduced by foreign investors and with the conduct of investor-state dispute settlement procedures or who wish to gain experience and exposure to the management of disputes involving foreign investors and the State. The course is particularly relevant for lawyers in government offices and private law firms assisting governments in international litigation involving foreign investors. The preparatory distance-learning (DL) course on key issues in IIAs is open to all interested candidates (see participants selection below). The participation in the DL course does not ensure participation in the subsequent face-to-face training course, but is a pre-requisite. Funding: The participation in the preparatory distance-learning course will be at the costs of the individual participants or their departments of Governments, respective agencies or other institutions. For the face-to-face course, the course organizers will select 25 participants who meet the requirements and fulfil the relevant application procedures, and cover tuition, travel, lodging and boarding expenses. Organizers: The course will be organized by the UNCTAD secretariat, in cooperation with the General Secretariat of the Organization of American States (OAS) and the secretariat of the Asociación Latinoamericana de Integración (ALADI) which will host the course, with the financial support of the Government of Spain. Contacts: UNCTAD: Work Programme on International Investment Agreements Division on Investment, Technology and Enterprise Development (DITE) Palais des Nations, 8-14 Avenue de la Paix, 1211 Geneva 10 Switzerland Fax: (41-22) Anna Joubin-Bret, Course Director, Senior Legal Adviser Tel: (41-22) , anna.joubin-bret@unctad.org Marie-Estelle Rey, Course Organizer, Legal Expert Tel. (41-22) , marie-estelle.rey@unctad.org 2

3 OAS: Maryse Robert, Acting Chief, Trade Section, SEDI/DTTC, Organization of American States Washington, USA Tel: /3181 ALADI Secretariat Fernando Suárez- Murias Montevideo, Uruguay Tel: (5982) , int Selection Criteria Selection of Participants The participant is in the service of government institutions (or regional institutions located in the region in which the training programme is offered) that are in charge of investment agreements negotiations (or investment chapters in free-trade negotiations) and/or that are dealing with claims introduced by foreign investors and with the conduct of investor-state dispute settlement procedures, be it at the Attorney-General's office, the Ministry of Law and Justice, the Ministry of Foreign Affairs, other relevant agencies or ministries, including the agencies responsible for the relations with foreign investors (investment promotion agencies). Participants application is supported by their respective institution. Participants should be nominated by the government or relevant agency for which they work. Requirements - University degree, preferably in law - Fluency in English and Spanish - Knowledge of issues related to international law and investment, international dispute settlement, international arbitration Selection Procedures The applicants must fill in the application form and submit it with a CV, a letter of nomination from their institution, a letter of recommendation from an academic or professional referee and a copy of their passport. Application should be sent before 17 September 2007 to: Marie-Estelle Rey, Course Organizer, Legal Expert Division on Investment, Technology and Enterprise Development (DITE) Palais des Nations, 8-14 Avenue de la Paix, 1211 Geneva 10 Switzerland Fax: (41-22) marie-estelle.rey@unctad.org The distance-learning course is opened to all registered candidates. The 25 participants to the face-to-face training session in Montevideo will be selected according to their profile, responsibilities and participation in the distance-learning course. A Selection Committee consisting of representatives from UNCTAD, OAS and the principal advisors of the course will review each application and inform the selected participants in due time. 3

4 Course Content Preparatory distance-learning course on IIAs in cooperation with TrainforTrade The managing investment disputes course presupposes in-depth knowledge of issues relevant to international investment agreements (IIAs) that are at the source of investment disputes. The distance-learning course, developed in cooperation with TrainforTrade, will allow participants to acquire the basic knowledge of key issues relevant to IIAs. The following core issues are covered by the distance-learning course: Scope and definition Admission and establishment Treatment (fair and equitable treatment, national treatment and most-favoured nation treatment) Protection (taking of property and transfer of funds) Dispute settlement (Investor-State and State-State) The distance-learning course will be undertaken by the participants through an internet-based training platform. The platform includes the participant's manuals, the interactive presentations, the tests and access to the chat and discussion forum. The course contains 9 sub-modules and hence requires a minimum of 9 half-days of work. During each module, the participant will be requested to fill out tests and send the answers to the training platform. A discussion forum will be made available to the participants and 2-3 chat sessions will be organized. National tutors in selected countries will facilitate the delivery of the course, under the coordination of the UNCTAD's TrainforTrade programme. Active participation to the distance-learning course is a pre-requisite for participating in the faceto-face training course, but does not ensure selection and funding, given that the face-to-face course is limited to 25 participants and that other criteria will be looked at by the Selection Committee. 4

5 Advanced training course on managing investment disputes Module I: Overview of key substantive issues Overview of international investment agreements: BITs, FTAs, State contracts, stabilization agreements Approaches to dispute settlement in investment agreements Jurisdiction criteria: o Jurisdiction ratione materiae o Jurisdiction ratione personae o Jurisdiction ratione temporis Key substantive issues giving raise to investment disputes: o Treatment and protection: fair and equitable treatment, full protection and security, the minimum standard of treatment, protection against expropriation, free transfer of funds, protection against strife o Non-discrimination: national treatment and MFN treatment, provisions on key personnel o Performance requirements, State monopolies, financial services o Non-conforming measures, exceptions, reservations Module II: Investment dispute settlement mechanisms and awards International dispute settlement mechanisms National dispute settlement in the host country Institutionally supported arbitration: o The ICSID Convention o The International Court of Arbitration of the International Chamber of Commerce o Other arbitration institutions: e.g. the London Court of International Arbitration, the American Arbitration Association, the OHADA, the Ghana arbitration centre Ad hoc dispute settlement: o UNCITRAL Arbitration Rules o Optional Rules for Arbitrating Disputes Between two Parties of which only one is a State of the Permanent Court of Arbitration o Other arbitration rules. The cost of arbitration in various procedures: o Under ICSID o Under ad-hoc and other mechanisms The arbitral award Formal and substantive requirements of an award The publication of awards o By the institution o By the parties to the dispute The date of the award Recognition and enforcement of the award o Execution of an ICSID award o The New York Convention o Interpretation, revision and annulment o Towards an appeal mechanism: pros and cons 5

6 Module III: Conducting an arbitration Initiation of a claim Procedure for the initiation of a claim Amicable settlement: the "cooling-off "period Mediation/conciliation o Under the ICSID Convention: request for conciliation, the conciliation commission, conciliation proceedings o Under other auspices Screening of requests before registration Preparing to defend a case Institutional arrangements to defend a case: setting up an in-house team Internal or inter-agency cooperation for fact-finding Selecting counsel Selecting an arbitrator Settlement during the arbitration proceedings: discontinuance of proceedings Dealing with procedural issues: language, schedule of proceedings, hearings, venue, experts, submissions, briefs, Working with a counsel Costs of proceedings: budgeting for fees, expenses, charges of arbitration centres Seeking costs: quantification of in-house costs. The arbitration procedure The arbitral tribunal: o Establishment and composition of the arbitral tribunal o Default procedures o Disclosure on possible conflicts of interest o Replacement and disqualification of arbitrators The arbitration procedure: o The place of proceedings o The rules of procedure o The first session o The written and oral procedure o Evidence, fact-finding, experts reports o Interim measures of protection o Amicus curiae submissions o Opening to the public o Consolidation Introducing objections o Objections on competence o Objection against frivolous claims o Ancillary claims o Introducing a counter-claim Governing law Role of national courts in interim injunctive relief and other phases of the procedure. 6

7 Module IV: Sharing experience Case studies in small groups on various key substantive and procedural issues, commented by experts and based on jurisprudence Working group sessions on researching a case, accessing legal sources and case law Simulation exercise on key elements of a dispute settlement case and deliberation of a mock arbitral tribunal Videotaping of the proceedings and debriefing at the end of the simulation on both the substantive results of the procedure and the behavioural aspects. Training methodology The approach for this training course is practical, relying mostly on sharing of experience, practical case studies, working group sessions on accessing legal material and a two-day final simulation exercise prepared by experts and ending with a mock arbitral tribunal deliberating interactively to give participants a hands-on experience of the various phases of a dispute settlement procedure. The focus of the course is to equip developing country in-house teams in defending cases by learning from the experience of practitioners involved in litigating on behalf of private investors as well as governments, practitioners and academics serving as arbitrators in investor-state cases, counsels working for the ICSID secretariat, the ICC, the Permanent Court of Arbitration, other arbitration systems. The course material will consist of background reading material, a comprehensive database of cases and material such as the full texts of all relevant instruments and arbitration rules, concrete case studies of relevant investor-state cases and specific course material developed by UNCTAD for each module. A follow-up to the course will be made available to the participants through membership to the e.network of negotiators and practitioners of international investment agreements and investment disputes, the access to databases and material maintained by UNCTAD and other relevant organizations collaborating with UNCTAD to the delivery of the course, as well as practical advice delivered on an ad-hoc basis. 7