“The future of Commercial Regime: Is the «Investment Court System» the right way?”
The discussion about the different systems of investment protection and international trade in the Madrid Arbitration Day, MAD, covered some of the real “hot topics” in investment protection and investment arbitration.
Professor Iñigo Navarro, Dean of the ICADE Law Faculty, invited the attendants to discuss the topics of the conference having in mind the principles of Humanitas, Iustitia and Utilitas of Jesuist Universities
Professor Sornarajah, first explained his views on the the flaws of the investment protection system (obscurity, expensiveness, threaten to sovereignty, etc.) and how developing countries were forced to sign the BITs that enabled this entire system. He was very critical with the role of arbitrators and lawfirms in perpetuating a system by creating new standards of international law.
Professor Howse remarked that the system of investment arbitration, as it currently is, remains essentially biased due to the attitude of arbitrators (“judges for hire”, as he defined) who get excessive revenues from the system. He suggested that an alternative system with permanent judges would be the best alternative.
Professor Fernandez Armesto remarked that the current system must be improved, but that the significant gains that it has generated for all actors (countries, population, corporations, rule of law) should not be ignored. He pointed out that arbitrators are limited by the treaties signed by States and that it corresponds to States the task of changing the treaties if they so want. Also, the system has an additional advantage: arbitrators are appointed by States (or ICSID from a list of candidates selected by States). Then, if States dislike the outcome obtained with a specific arbitrator, they would simply avoid appointing him or her again.
The interventions of the rest of the attendants were very accurate and insightful. There were practicing lawyers, members of the Spanish Government, the European Commission and Students.
All their views are found in the full video of the seminar: