Corporate Europe Observatory

Exposing the power of corporate lobbying in the EU

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Chapter 3: Legal vultures: Law firms driving demand for investment arbitration

Why do law firms deal with investment law?  One reason is clear: because of the money.  [...] Cases are incredibly long, incredibly complex and you make a lot of money.

Lars Markert, Gleiss Lutz1

The debt crisis in Greece grabbed the attention of the world in 2011. With an enormous budget deficit, violent protests and public spending cuts that devastated the lives of ordinary people, the country appeared to be constantly on the brink of collapse. Without massive restructuring to reduce the debt, Greece’s survival was under threat. And with it that of Europe’s economy. Several international law firms were also watching Greece – but their concern was not to save the Greek people from social disaster or prevent economic collapse in Europe.

In the midst of the debt crisis, lawyers urged multinational corporations to use investment arbitration to defend their profits in Greece. The German law firm Luther, for example, told its clients that, where states were unwilling to pay up, it was possible to sue on the basis of international investment treaties. Luther suggested that “Greece’s grubby financial behaviour” provided a solid basis for seeking compensation for disgruntled investors, paid for ultimately by Greek taxpayers2.

The lawyers’ enthusiasm was not based in fantasy. The UN has recognised that international investment agreements can severely curb states’ abilities to fight financial and economic crises3. Argentina has been sued more than 40 times as a result of the economic reform programmes implemented after its economic crisis in 2001. By the end of 2008, awards against the country had reached a total of US$1.15 billion4. That’s the equivalent of the average annual salary for 150,000 Argentinian teachers or 95,800 public hospital doctors5.

Analysing one of the pending disputes against Argentina in an October 2011 client briefing paper, US-based law firm K&L Gates wrote that investment treaty arbitration could “recover damages for investment losses from nations defaulting on their sovereign debts.” It continued: “Given the current financial crises worldwide, this should provide hope for investors who have suffered losses at the hands of sovereign restructuring of their debt instruments”. The firm identified Greece as a country where investors should check which investment treaties “may protect their investment”. The firm also suggested clients should use the threat of investment arbitration as a “bargaining tool” in debt restructuring negotiations with governments6.

The legal sharks have already started circling the fall-out from the Greek sovereign debt restructuring.

Patrick Heneghan & Markus Perkams, Skadden7

US law firm Milbank, the Dutch firm De Brauw and UK-based Linklaters all took a similar line8, preparing the ground for billion dollar claims against a cash-strapped country struggling to restore its economy. While their profits per partner climbed to up to US$2.5 million in 2011 (at Milbank), Greece lowered the monthly minimum wage for workers under 25 to €510 (US$ 660)9.

In March 2012, after long negotiations between the EU and the banks, funds and insurers owed money by Greece, most accepted to ease repayment terms. Soon after, several law firms announced that they would seek millions in damages on behalf of lenders refusing to accept the debt swap10.

The Greek debt crisis case stands out as just one example in a highly lucrative investment arbitration business. It suggests a new breed of international ‘ambulance chasers’ has emerged on the global stage. The term ‘ambulance chasers’ originated in the late 19th Century and referred to lawyers who sought to profit from someone’s injury or accident, following hospital wagons to the emergency room in search for legal clients. Today’s ambulance chasing has gone global, with international law firms encouraging multinationals to sue governments in international investment disputes – wreaking havoc on public finances, social, health and environmental policies.

Table 1

The 20 busiest investment arbitration law firms

These law firms claimed involvement in the most investment treaty disputes in 201111. Please note the numbers are those provided by the firms themselves, have not been externally verified, and some firms did not provide any data. The importance of law firms which are not on the list should not be underestimated as they may also handle disputes with huge implications for the public interest and be important actors in the world of investment arbitration12.

Law firmNumber of treaty cases in 201113Gross revenue in 2011 (US$)14Profits per partner in 2011 (US$)15Does the firm work for investors or states?16Prominent investment treaty arbitratorsWhat you s hould know about the firm
Freshfields Bruckhaus Deringer (UK)711.82 billion2.07 millionBoth – but represented the investor in majority of known casesJan Paulsson, Noah Rubins, Lucy Reed, Nigel BlackabyBy far the dominant investment arbitration firm in the past decade
White & Case (US)321.33 billion1.47 millionBoth – probably with more work for statesCarolyn Lamm, Charles Brower (until 2005), Horacio Grigera Naón (until 2004)Representing Italian bondholders in their multi-billion dollar arbitration against Argentina following the country’s sovereign debt restructuring in the aftermath of its 2001 financial crisis (see page 19).
King & Spalding (US)27781 million1.93 millionWorks for investors – with very few exceptionsDoak Bishop, Guillermo Aguilar-Alvarez, Eric Schwartz, John SavageSpecialises in suing Argentina and in dirty energy claims as in Chevron vs. Ecuador (see page 25). Acting for US group Renco, seeking US$800 million from Peru over a metal smelter deemed one of the world’s most polluted industrial sites.
Curtis Mallet-Prevost, Colt & Mosle (US)20165 million1.54 millionIn investment disputes, the firm always represents the state, never the investor The firm’s revenue increased 50% between 2007 and 2012, thanks largely to its investment arbitration work for states such as Venezuela, Kazakhstan and Turkmenistan17.
Sidley Austin (US)181.41 million1.60 millionBoth – but probably with more work for companiesStanimir Alexandrow, Daniel Price (until 2011)Together with Lalive, Sidley represents tobacco giant Philip Morris in its case against Uruguay, challenging the country’s restrictions on cigarette marketing (see page 13).
Arnold & Porter (US)17639 million1.40 millionBoth – but probably with more work for statesJean Kalicki, Whitney DebevoiseTogether with Ogilvy Renault (now merged with Norton Rose) the firm sued Canada for paper maker Abitibi-Bowater because a provincial government had taken back its water and timber rights – after the company had closed its mills. Canada paid US$130 million to settle the case, the largest known payment so far under NAFTA.
Crowell & Moring (US)13329 million845 thousandWorks for investors – with very few exceptions The firm represents Canadian mining company Pacific Rim in its legal battle with El Salvador, claiming around 1% of the country’s GDP because it did not approve a license to mine for gold.
K&L Gates (US)131.06 billion890 thousandBothSabine KonradWhenever energy giant Vattenfall sued Germany, the government picked Sabine Konrad as counsel – despite her promotion of investment arbitration against states (see pages 19 and 27).
Shearman & Sterling (US)12750 million1.56 millionBoth – but investor’s counsel in large majority of known casesEmmanuel Gaillard, Philippe Pinsolle, Fernando Mantilla-Serrano, Yas BanifatemiElite arbitrator Emmanuel Gaillard is the figurehead of the firm, attracting vast amounts of work as counsel. One of the industry’s intellectual lions, he constantly intervenes in political and academic debates about investment law and arbitration (see pages 28, 41, 47).
DLA Piper (US)112.24 billion1.22 millionBothPedro Martinez-FragaThe world’s second-largest law firm represents investors in several ICSID cases against Venezuela, all filed days before the country’s withdrawal from the centre took effect in summer 2012.
Chadbourne & Parke (US)11306 million1.31 millionInvestor The firm is a prime example of the opacity of international investment arbitration. It claims to have acted in 11 disputes in 2011, but none are listed on its website.
Cleary Gottlieb Steen & Hamilton (US)more than 10181.12 billion2.69 millionBoth Cleary Gottlieb represented Telecom Italia in a claim against Bolivia. Reacting to Telecom Italia’s faulty service and low investment, Bolivia re-nationalised the telecoms firm Entel. Bolivia paid US$100 million to settle the case.
Appleton & Associates (CAN)10 or more19no datano dataThe firm always represents the investor, never the state Barry Appleton brought some of the first NAFTA cases against Canada for the firm, including acting for Ethyl following the ban of a toxic gasoline additive. The case settled when Canada repealed the ban and paid US$13 million in compensation. Appleton still sues Canada regularly.
Foley Hoag (US)10149 million1 millionStateMark ClodfelterIn investment arbitration, the firm works mainly for states; several of its lawyers have a background in government.
Latham & Watkins (US)102.15 billion2.27 millionBothRobert Volterra (until 2011)In one of the first investment arbitrations following the Arab Spring, the world’s fourth largest law firm is representing multinational Indorama against Egypt. An Egyptian court ordered Indorama to return a textile factory, which it had acquired under the Mubarak regime, seemingly under corruption-riddled circumstances.
Hogan Lovells (US/UK)101.66 billion1.16 millionBoth, probably with more work for states Represents British company Churchill in its US$2 billion claim over the revocation of coal mining permits on the Indonesian island of Borneo. Indonesian courts had ruled the permits were forged.
Clyde & Co (UK)10460 million915 thousandBoth, probably with more work for investors First foreign law firm to open an office in post-Gaddafi Libya, anticipating disputes as a result of regime change (also see page 23).
Norton Rose (UK)101.32 billion620 thousandTends to work for investorYves Fortier (until 2011), Michael Lee (until 2001)In 2011, Norton Rose merged with Canadian Ogilvy Renault, which has represented investors in controversial cases against Canada, including challenging a pesticide-ban for US-based Dow. After more than 50 years with the firms, full-time arbitrator Yves Fortier left in 2011, citing potential conflicts of interest between his work as arbitrator and the client work in a global law firm (see page 39).
Salans (F)9260 million20725 thousand21Both, probably with more work for investorsBart Legum, Jeffrey Hertzfeld, Hamid Gharavi (until 2008)The head of investment arbitration, Barton Legum, was a US government lawyer and defended the country in several NAFTA disputes. Today, he sells the insights he gained to Canadian pharmaceutical company Apotex, suing the US under NAFTA’s investment chapter (see page 29).
Debevoise & Plimpton (US)9675 million2.07 millionRepresented the investor in nearly 100% of known casesDonald Francis DonovanTogether with Covington & Burling, Debevoise won the largest known ICSID award, US$1.76 billion plus millions in interest, for US-based Occidental Petroleum against Ecuador, for the termination of an oil production site in the Amazon. Oxy has been accused of human rights violations and environmental destruction.

Big Business for Big Law

Globally, three firms have emerged as market leaders in the investment arbitration business: Freshfields Bruckhaus Deringer (UK), White & Case (US) and King & Spalding (US) (see table 1 on pages 20-21). Freshfields alone claims to have acted in more than 165 investor-state disputes22. Such dominance creates a reputation for these firms, which in turn brings new cases and leads to a concentrated market that is difficult for newcomers to enter. One practitioner estimates that 25 out of 30 new cases at the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) go to the heavyweights in the field23. Non-Western law firms from the countries most sued by investors scarcely get a look in.

In any arbitration, the primary cost is the cost of the lawyers.

Gabriele Crespi Reghizzi, Professor, arbitrator and of counsel Lombardi Molinari e Associati24

Lawyers at elite arbitration law firms charge up to US$1,000 per hour for their services, with cases often handled by teams of lawyers and taking years. The consequent legal bill for countries defending cases can be staggering. (see box 3 on page 15)

Arbitration lawyers also profit when cases settle before a final trial, as happens with many disputes. Contingency fee arrangements, where lawyers only get their full payment if they win the case or it is favourably settled, usually as a percentage of the client’s net recovery, are becoming more commonplace, which means that the lawyers can receive a substantial fee even without lengthy litigation. In one reported case, the law firm King & Spalding allegedly claimed over 80% of a US$133 million award from its client25.

Law firms know the unwritten rules of the game

An anecdote in the Global Arbitration Review (GAR) 100, a yearly survey of specialised arbitration firms, indicates why arbitration lawyers have become such high-priced actors. The story is about a university lecture on international arbitration by Matthew Weiniger from the UK-based law firm Herbert Smith Freehills, who regularly appears before arbitration tribunals. He compared the UK’s two volumes of court rules and procedure with a thin booklet produced by the International Chamber of Commerce. “The difference between those two thicknesses,” Weiniger explained to his students, “is what international arbitration lawyers know. And it’s not written down”26.

It is this “lack of rules and regulations to consult” that leaves many young lawyers who enter the field of international arbitration “feeling almost queasy,” according to GAR. “They’re disoriented to be in a world where case procedure can be entirely ad hoc.” International arbitration does not even look like a legal proceeding. An outsider would “see two small groups of lawyers wearing lounge suits, occupying a hotel room or training room. On the other side of the room: a trio of types with possibly a bit more grey hair. There’s no audience, no usher and little hint of pomp or ceremony. It could perhaps be mistaken for a training course”27. Or a business meeting.

Hiring some of the rare advocates with inside knowledge about this mysterious universe offers a significant advantage. A practitioner from Swiss firm Schellenberg Wittmer explained: “Who should we choose as arbitrators? How many witnesses should we have? How many written submissions? Should we allow written witness statements? You have to be aware of these issues to know what’s good for your case and what is not”28.

It is often observed that ‘arbitration is only as good as the arbitrators you choose’. Arguably, the process starts one step earlier. Pick the right counsel, and you start a chain reaction that ought to end somewhere positive.

Global Arbitration Review29

Countries which can’t afford this kind of expertise often find their defence case suffers from scattered and incomplete sources of investment law and jurisdiction30. The Czech Republic, for example, only managed to successfully defend its cases when it turned away from domestic lawyers and hired some of the costly international elite firms31. The secrecy of the investment arbitration regime secures the market of the leading firms.

Know your ‘judge’, be the ‘judge’

Specialised arbitration lawyers have another advantage. They know the ‘judges’. And the ‘judges’ know them. As one arbitration lawyer boasted: “I’ve got a case right now in front of [a leading international arbitrator]. Every time I go to a conference, he’s there. We read each other’s books. My opponent on the case... well, he hasn’t got a clue […]. Between all the partners in our group [...] we’ve appeared before every single arbitrator worth knowing. Not just once, but multiple times in the past few years and we have the inside knowledge as a result of that”32.

The better you know an arbitrator, the better you know how to convince them. Familiarity also increases your chances of picking someone who will rule in your favour. As K&L Gates has claimed: “Our knowledge of arbitrators means we are also well placed to ensure that your case is presented in such manner [sic] as is most likely to appeal to the majority of the tribunal, bearing in mind their particular likes/dislikes and their overall approach”33. No wonder, parties tend to rely on suggestions from counsel when appointing arbitrators. That way, specialised arbitration lawyers become the “gatekeepers” of the arbitration community, and keep it close-knit34.

It all comes down to an old adage, ‘know your judge’ – and its even more important other half, ‘make sure your judge knows you’. The longer an advocate spends in the presence of adjudicators, the better his or her chances of being persuasive in front of them.

Global Arbitration Review35

As many as two dozen senior lawyers in the top firms also act as arbitrators36, opening a Pandora’s box of potential conflicts of interest because of their vested interest in growing their own business. An arbitrator might, for example, be tempted to make a decision that will favour a client whom they represent as counsel in another case. Some suggest that the dual role of arbitrator and counsel is “one of the most significant problems of the investment arbitration regime”37. But according to one of the leaders in the arbitrator market, Swiss firm Lalive: “the lawyer who regularly sits as an arbitrator is the more astute advocate”38. (see also chapter 4)

Multiplying arbitrations against countries

Crisis in Libya: What Legal Options are Available to Oil and Gas Companies?

‘Client alert’ issued by King & Spalding in the midst of the 2011 Libyan civil war39

Turning international investment arbitration into a lucrative business has provided a great incentive for smart lawyers to sustain and expand the system in order to maximise profits. Keeping corporate clients constantly informed about the opportunities for litigation is the bread and butter of an international investment arbitration lawyer. Fuelling claims against countries fighting a major economic crisis is one way to expand your business, but lawyers have also tried to profit from human disasters.

Take the 2011 civil war in Libya. While the global public followed events fearing an imminent massacre, the arbitration industry was advising the multinational community how to defend its profits in the country. Freshfields suggested corporations could use investment treaties to sue the Libyan state with investors claiming financial compensation for the country’s failure to comply with promises “regarding physical security and safety of installations, personnel etc.”40. The new government might now have to compensate the companies that supported the dictatorial regime as a result of the shift towards democracy.

King and Spalding similarly flagged up arbitration options available to oil and gas companies in Libya41, as did Clifford Chance, Cleary Gottlieb and Fulbright42. Renowned arbitrator Christoph Schreuer identified the “considerable” legal potential of investment treaties in situations such as the Libyan civil war, writing on the protection of investments in armed conflicts43.

When Hungary introduced a tax on profitable companies to reduce its back-breaking public debt in 2011, law firm K&L Gates suggested some “attractive” arbitration options44. When Swedish energy giant Vattenfall announced arbitration against Germany’s phaseout of nuclear power (see box 5 on page 27), UK firm Herbert Smith Freehills analysed how investors “might seek redress in the UK should a similar decision be made here”45. When India allowed a generic drug producer to sell a cheaper version of a patented cancer drug in 2012, White & Case pointed out that patent-holding drug multinationals “may be able to seek relief under applicable bilateral investment treaties”46.

I truly believe that the investment arbitration system wouldn’t exist the way it does today if it wasn’t for the lawyers.

Nathalie Bernasconi-Osterwalder, International Institute on Sustainable Development (IISD)47

Specialised arbitration firms run huge marketing departments identifying potential hooks for investment claims, targeting investors48. Not every company follows their advice49, but the ambulance chasing of some law firms is nevertheless a driving force in the boom in international investment arbitration. As one lawyer explained: “Lawyers live on disputes. They create monsters like the current investment arbitration regime and hype it to produce work for themselves – as lawyers and arbitrators. I truly believe that the investment arbitration system wouldn’t exist the way it does today if it wasn’t for the lawyers”50.

Investment arbitration lawyers are not just ambulance chasing. They are also creating the accidents because, doubling as arbitrators, they often interpret the treaties very broadly. So it’s a bit like ambulance chasing after your friend has put banana peels on the road.

Professor Gus Van Harten, Osgoode Hall Law School, Toronto51

Reining in democracy

For law firms looking to maximise profits from arbitration, state regulations to protect the environment, public health and social security have become lucrative business opportunities. As two lawyers from the law firm Milbank put it: “Adverse government actions do not have to take place only with autocratic rule. The populism that democracy can bring often is the catalyst for such actions”52.

In a brochure entitled “Help, I am being expropriated!”, German law firm Luther has promoted scenarios such as new taxes, newly-introduced environmental laws, and reduced state-controlled prices as opportunities for investment arbitration. The abolition of tax privileges and special economic zones in the aftermath of Ukraine’s 2005 Orange Revolution was put forward as another example53.

Extract from a role play to train practitioners54

Investment lawyer: Well, I know you were looking for a tough litigator to help you in [imaginary country] Ruritania, but I’m here today to propose a completely different approach to this issue that you have in Ruritania, and we believe based on our experience that it is an approach which is much more likely to get you the kind of compensation that Toll-Stoy [an imaginary construction company] deserves.

Toll-Stoy counsel: And what approach is this?

Investment lawyer: Have you considered a claim under a BIT?

Toll-Stoy counsel: A BIT?

Investment lawyer: A Bilateral Investment Treaty.

Toll-Stoy counsel: A Bilateral Investment Treaty? What’s that?

[Lengthy exchange about the BIT system]

Investment lawyer: Well, the BIT gets you out of Ruritanian courts and before a neutral independent body of arbitrators that has the power to render an award for millions of dollars for Toll-Stoy and you can take that award and have it treated as a judgement in a 142 countries around the world.

Toll-Stoy counsel: Oh, now I’m interested.

Tell me more.

Box 4

King & Spalding profile

King & Spalding shot into the top ranks of international arbitration firms in the last decade – focusing almost exclusively on investor-state arbitration. According to Global Arbitration Review the firm’s key to success was winning ICSID cases against Argentina55. King & Spalding represented investors in at least 15 out of the 49 ICSID cases filed against Argentina by February 201256, more than any other firm. Doak Bishop, co-head of the firm’s international arbitration group, is considered “the go-to lawyer for claims arising from Argentina’s peso crisis”57. He secured a staggering US$185 million in compensation for US firm Azurix which had taken over the privatised water and sewage system in the Buenos Aires region and which sued Argentina when the province’s water regulator blamed it for an algae outbreak in 2000.

King & Spalding’s second speciality is working for “super-major and major international oil and gas companies”58. In the mid ‘90s, the firm opened a Houston office following a request by Houston-based oil giant Texaco, which wanted King & Spalding to handle its litigation needs. Since then, the firm has alerted energy companies to arbitration as one of the “strategic options available when catastrophe strikes the major international energy project”. “Catastrophes” have included a newly-elected government terminating a project, civil unrest and company executives arrested on criminal charges59. Energy-related disputes have become a large share of investor-state claims.

King & Spalding is currently representing Chevron in a controversial dispute with Ecuador. Chevron initiated arbitration to avoid paying US$18 billion to clean up oil-drilling-related contamination in the Amazonian rainforest, as ordered by Ecuadorian courts. The case has been lambasted as “egregious misuse” of investment arbitration to evade justice60. Doak Bishop, on the other side, dismissed the rainforest communities who were harmed by Chevron’s ecological destruction as “irrelevant”61.

The investor-appointed arbitrator in the Chevron-Ecuador case, Horacio Grigera Noan, has come under fire from the rainforest communities for his close business relationship with King & Spalding62. In another case of a US oil company against Ecuador, the investor-appointed arbitrator, Guido Tawil, resigned following allegations of an “extremely close connection and relationship” with King & Spalding, the oil company’s counsel63.

King & Spalding has some 50 arbitration lawyers working from key arbitration hubs such as Washington, New York, Paris, London and Singapore64. Several of the firm’s lawyers sit as arbitrators and some hold positions in arbitral institutions such as the ICC’s International Court of Arbitration65. Margrete Stevens, “the most senior former ICSID official to go into private practice”66, joined King & Spalding after 17 years at ICSID. Her colleagues also have excellent contacts with investment policy-makers: Guillermo Aguilar-Alvarez, for example, used to be a legal advisor for the Mexican government in the NAFTA talks (North American Free Trade Agreement between the US, Canada and Mexico)67.

King & Spalding lawyers have rarely represented the state in an investment dispute, acting on behalf of the company in 35 of the 37 investor-state disputes listed on its website in March 201268.

Scaring governments into submission

Arbitration lawyers also encourage their clients to use the threat of investment disputes as a way to scare governments into submission. According to Luther: “A settlement, which you should always aim for, is easier to reach under the shadow of a looming investment treaty claim”69. Luther was one of the firms involved in securing a settlement for Swedish energy giant Vattenfall against Germany, a typical case of a government lowering standards in the face of a large compensation claim (see box 5 on page 27).

I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation […]. Virtually all of the new initiatives were targeted and most of them never saw the light of day.

Former Canadian government official70

These “pre-emptive strikes” seem to be on the rise, with investment arbitration no longer a last resort, but a political weapon in a wider war of attrition against states71. There is evidence that proposed and even already adopted laws on public health and environmental protection have been abandoned or watered down because of the threat of huge damage claims. Canada, for example, did not pursue certain anti-smoking policies after Big Tobacco threatened to seek compensation72. Five years after NAFTA’s investor-to-state provisions came into force, a former Canadian government official told a journalist: “I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law. Virtually all of the new initiatives were targeted and most of them never saw the light of day”73.

Making money with 3-D chess:
BIT s hopping and investment structuring

Lawyers also assist investors in picking the most investor-friendly treaties for their claims against states – what is known as ‘BIT shopping’(BIT = bilateral investment treaty). Thanks to their global reach, multinationals can sue the same country in several fora, on the basis of the same facts. In one of the most famous cases of this “multifront war” which has been compared to “3-D chess”74, US cosmetics billionaire Ronald Lauder sued the Czech Republic under the US-Czech BIT, and then again under the Netherlands-Czech BIT (the investment was structured via a Dutch vehicle). In the latter case, the Czech Republic was ordered to pay US$ 270 million plus interest, the equivalent of the country’s entire health budget. The first case was dismissed75.

It is no crime to get smart about BIT-shopping.

Elvira R. Gadelshina, Russian law firm
Yukov, Khrenox & Partners76

Lawyers also advise their clients on what they euphemistically call “corporate structuring for investor protection” to ensure access to the most investor-friendly arbitration routes. Self-acclaimed ‘foreign policy lawyer’ Robert Amsterdam explained: “In order to take advantage of the strongest BITs, the investor should consider structuring the company through a third party state for greater security – i.e., a Canadian company seeking to invest in Bolivia may choose to establish a shell corporation in Sweden to be afforded the protective measures of a stronger treaty”77. Thanks to such an offshore construction, a ‘Lithuanian’ company could sue Ukraine under a BIT, even though it was 98% owned by Ukrainians78.

With one of the world’s largest investment treaty networks, the Netherlands is a particularly popular “gateway for treaty-shopping”79. This is thanks to firms such as Amsterdam-based De Brauw Blackstone Westbroek touring the globe advertising investments in energy rich and developing countries ‘through’ the Netherlands80. US firm Baker McKenzie advises its US clients to structure investments in China through intermediary companies in the Netherlands – because there is no US-China investment treaty, but there is a Dutch one81. When the Australian government turned its back on investor-state arbitration in April 2011, Clifford Chance suggested the Netherlands as a “very popular choice” to Australian corporations still wanting to sue foreign states82.

Box 5

Representing Vattenfall

Scorning the environment and democracy

In 2009, Swedish energy giant Vattenfall brought the first known investment treaty claim against Germany. The company demanded €1.4 billion (US$1.9 billion83) in compensation for environmental measures restricting the use and discharge of cooling water for a coal-fired power plant on the banks of the Elbe river in Hamburg. After Germany agreed to dilute environmental standards, a settlement was reached, worsening the effects that the power plant will have on the river and its wildlife84.

Let him who desires peace prepare for war.

Vegetius, 4th century

We are prepared.

Law firm Luther advertising its arbitration work85

Having tasted blood, Vattenfall launched its second investor-state challenge against Germany in May 2012, seeking damages related to two of its nuclear power plants. Following the Fukushima disaster and the German public’s hardened anti-nuclear stance, the German government had decided to phaseout nuclear energy. Vattenfall is claiming €3.7 billion (US$4.6 billion86) in compensation – even though its two plants were not operational when the phaseout decision was made87.

In both cases, Vattenfall was represented by the German law firm Luther and the Swedish firm Mannheimer Swartling. These two boutiques are not among the world’s biggest, but their arbitration practice is global.

Mannheimer Swartling’s 60-lawyer-strong dispute resolution team is the firm’s “dominant group”88 with lawyers based in Sweden, Germany and Hong Kong, as well as regularly jetting out to the Moscow office89. They specialise in energy and natural resource related disputes under BITs and the Energy Charter Treaty, often involving states of the former Soviet Union. Six of the firm’s lawyers sit as arbitrators90, including ex-White & Case lawyer Kaj Hobér who has appeared in more than 300 arbitrations91. As “one of the foremost current practitioner-academics”92, Hobér was appointed Professor at Uppsala University, Sweden, to lead Europe’s first MA programme in investment treaty arbitration93.

Luther, is one of only three German outlets among the global top 100 arbitration firms94 and sees itself as a “business law firm” – “thinking and acting like businessmen”95. It, too, appears to specialise in disputes under the Energy Charter Treaty, with partner Richard Happ having spent part of his legal training in the Secretariat of the Energy Charter Conference96. Happ also sits as arbitrator and co-authored a brochure published by the German government, suggesting a number of public policies that are ripe for investment arbitration (see page 24).

A third actor in the Vattenfall cases is the US firm K&L Gates, representing the German government. The latter does not seem to mind that the firm’s lawyers on the case, Sabine Konrad and Lisa Richman, are some of the most pro-active investment lawyers in seeking to trigger investment treaty cases against states. (see pages 19, 23). Konrad also sits as an arbitrator and mobilised against reform of the European investment policy (see page 28)97. She leads K&L Gates’ German arbitration practice together with Johann von Pachelbel, who was one of Mannheimer Swartling’s counsels for Vattenfall in the first case against Germany98.

Paving the way for future claims

Law firms also play a key role in ensuring that arbitration rulings are expansive and investor-friendly, increasing their future business. Should an aggrieved investor be allowed to bring parallel disputes on the basis of the same facts? Can a 98% Ukrainian-owned investor sue Ukraine through a Lithuanian holding company? Answers to such contested legal questions matter for the concrete case, but also for investors’ future chances of success. Research reveals that tribunals tend to resolve such issues with expansive, investor-friendly interpretations, paving the way for even more challenges against states99. But while the arbitrators ultimately decide on these questions, the parties’ lawyers play a key role in bringing the underlying arguments forward100. Another way for law firms to perpetuate and exacerbate the injustice of the investment arbitration system.

Teaching governments, growing new clients

Specialised arbitration law firms even seem to have negotiated some investment treaties for governments, and regularly instruct them about arbitrations and advise them on treaty drafting. Swiss law firm Lalive, for example, runs regular

e-learning courses on investment arbitration for UNITAR, the UN organisation for capacity building in developing countries101. Officials from poor countries get extra scholarships – and Lalive benefits from a long list of potential new clients.

In November 2011, a dozen government lawyers from Ghana, Gambia, Liberia, South Africa, Uganda and Egypt attended a full-week training on investment law and arbitration, sponsored by a number of large arbitration firms including Salans, Hogan Lovells, Volterra Fietta, WilmerHale and Allen & Overy – which provided the trainers102.

We also advise governments on drafting and negotiating BITs and managing the risk of investment claims in the implementation of government policy.

Hogan Lovells103

Lobbying to kill investment treaty reform

As governments come to realise the threat that the international investment regime represents to responsible public policies, more and more are trying to reduce their legal exposure to investor-state disputes (see page 16). Industry associations and big law firms have mounted fierce lobbying campaigns to counter any reform process, propping up an unjust but highly lucrative system104.

The current debate in the EU is a case in point105. With the coming into force of the Lisbon Treaty in 2009, lawyers faced the risk of radical reform of investment treaties in the EU. Trade unions and civil society groups had long called for an overhaul of EU member states’ BITs to guarantee a greater balance between public and private interests. They advocated a whole new generation of agreements: without investor-state dispute settlement, with investor obligations, with more precise and restrictive language regarding their rights, and with explicit references to countries’ right to regulate. Some members of the European Parliament (MEPs) were also moving in that direction.

There are people within the system who are very supportive of the way it currently operates and do a lot to encourage governments to sign treaties. They work as lawyers, they advise governments, they tell governments that actually all these concerns about investment treaties are exaggerated and that they should keep signing them.

International investment law researcher106

But that was not what the arbitration industry had in mind. To influence the debate, firms such as Hogan Lovells, Herbert Smith Freehills and Baker McKenzie invited EU policy-makers to “informal but informed” debates with their multinational clients – including several which have sued states under investment treaties such as Deutsche Bank and Shell. Dutch law firm De Brauw sent an article to MEPs slamming the European Parliament’s moderate reform proposals. The message from these firms was clear. Existing BITs and the high standard of investor protection and in particular investor-to-state arbitration had to be maintained; and investment protection should not be linked to labour or environmental standards.

Investment lawyers were also keen to retain the investment treaties that EU countries have signed amongst themselves. Elite arbitrator Emmanuel Gaillard of Shearman & Sterling warned of the “disastrous economic consequences” if they were abolished, as had been proposed107. De Brauw and K&L Gates echoed the warning108. But the firms discretely forgot to mention that they make considerable profits from these so called intra-EU BITs, suing the same EU governments that they were now lobbying to keep the legal base for this business intact. De Brauw, for example, is representing the Dutch insurance company Eureko in a €100 million (US$142 million109) claim against the Slovak government on the basis of a BIT between the Netherlands and Slovakia. The Slovak government had reversed the health privatisation policies of the previous administration, requiring health insurers to operate on a not-for-profit basis110.

Investment lawyers walking in and out of government

In its fight against meaningful reform of international investment law, the arbitration industry can count on first-rate access to legislators and policy officials responsible for negotiating investment treaties and battling disputes. Many of these public servants roam the same conferences and socialise at the same gala dinners; while many in the arbitration circuit, and particularly in the US, have a background in government and international institutions (see box 6).

The revolving door grants the arbitration industry valuable insider access. In an interview, former US government insider Theodore Posner who now works for the law firm Weil, Gotshal & Manges explained that he and others like him “know how government officials negotiate treaties and how they analyze the issues”. He is now lobbying to tailor future US investment treaties to his corporate clients’ needs111.

The revolving door also breeds conflicts of interests by inviting public officials to use their positions for private gain, including for the benefit of future employers. Several of the NAFTA investment chapter negotiators and advisors have become household names in the arbitration industry, including Daniel Price who negotiated on the US side (see his profile on page 44), Jan Paulsson (see his profile on page 40) and King & Spalding’s Guillermo Alvarez Aguilar, who have both advised the Mexican government. The moment NAFTA was signed, these lawyers pushed companies to sue the three signatory states. In an article from 1995, Paulsson enthused about “this new territory for international arbitration” which only allows companies to sue the state and not the other way round112.

Box 6

Some emblematic revolving door cases

Barton Legum of Paris-based law firm Salans, formerly with Debevoise & Plimpton, was with the US Department of State from 2000 to 2004. He was lead counsel defending the US against investor disputes and helped develop new investment treaties. Today, he is selling the insights he gained in that period to firms such as Apotex, a Canadian pharmaceutical company suing the US for at least US$520 million on the basis of NAFTA’s investment chapter113. Legum also sits as an arbitrator.

Regina Vargo of K-street law firm Greenberg Traurig, joined the firm after more than 30 years in US government, including as chief negotiator for free trade and investment agreements such as CAFTA-DR (U.S.-Central America Dominican Republic agreement)114. According to one colleague “no one has been more up close and personal with the CAFTA”115. In the first investor-state claim under the treaty, Vargo obtained an award of around US$12 million from the Guatemalan government for a US railway investor. A trade unionist commented: “She was paid by the USTR [US Trade Representative] to strike a good deal on behalf of US investors in Central America. And now she is taking the first case to exemplify how treaties like CAFTA favor those investors”116.

Anna Joubin-Bret of US boutique Foley Hoag, spent 15 years with the United Nation Conference on Trade and Development (UNCTAD), advising developing countries on investment treaty issues. Joubin-Bret was the lead organiser of UNCTAD’s infamous mass signing parties where developing countries were lured into a room full of negotiators, leaving as signatories to dozens of investment treaties117. At Foley Hoag, Joubin-Bret now represents states in investor-state disputes and advises them in treaty drafting.

Members of our team have unmatched knowledge and experience, often drawing from prior service in governments around the world.

Sidley Austin about its arbitration practice118

Keepers of the corporate flame

In 2001, journalist and author William Greider described NAFTA’s investment chapter as the result of industry’s long-term strategy to force governments to compensate whenever they regulate. Corporate lawyers, he suggested, were the “main transmission belt” for putting this idea into practice. “Their role, often underappreciated, is to act as the keepers of the flame, nurturing long-term policy objectives over many years and beyond the transient influence of elected politicians or corporate CEOs. They move in and out of government themselves, helping to write the official texts and laws they later use as tools on behalf of corporate clients when they return to private practice”119.

Explorers have set out to discover a new territory for international arbitration. They have already landed on a few islands, and they have prepared maps s howing a vast continent below.

Jan Paulsson of Freshfields, promoting investment arbitration in 1995120

The investment lawyer’s toolbox

Become part of the club. Take your Blackberry and jet out to arbitration conferences. Subscribe to expensive list-serves. Become friends with other investment lawyers, arbitrators, funders and academics.

Headhunt government officials. Their insider knowledge is invaluable and their contacts to ex-colleagues might come in handy.

Know the arbitrators. Learn what they read, write, think, like, dislike. The better you know an arbitrator, the easier you will convince him/her and make them rule in your favour.

Be the arbitrator. Even better! No one is as astute as the lawyer who regularly sits as an arbitrator.

Create your own business. Look out for wars, economic crises and political change. Do your marketing.

Convince your multinational clients that investment arbitration is a way to make money from such upheavals.

Inflate your business. Get smart about treaty-shopping. Pursue parallel claims against states on the basis of the same facts. Put forward expansive, pro-investor interpretations of contested legal issues – to pave the way for even more disputes in the future.

Scaremonger states. The threat of a multi-million dollar investor claim will make governments behave. With a contingency fee deal, you can cash in on the settlement.

Be a mentor. Offer free capacity building to poor governments – all potential new clients. Maybe you can even advise them on treaty drafting.

Lobby against investment treaty reform. Investment treaties are your cash cow. Fight against reform proposals which might make them less profitable.

But protect the system! Investment treaty arbitration is in a crisis of legitimacy. You will have to swallow some minor reforms to keep it intact and lucrative. 

References chapter 3:

  • 1. Markert, Lars (2012) “Investitionsrecht aus der anwaltlichen Praxis”, presentation at the International Investment Law Centre Cologne, 18 May; non-authorised translation: Pia Eberhardt.
  • 2. Happ, Richard/ Bischoff, Jan Asmus (2011) Rechtsschutz bei Staatsbankrott?, Luther News, 16 August, pp. 1, 6.; translation: Pia Eberhardt.
  • 3. UNCTAD (2011) Sovereign Debt Restructuring and International Investment Agreements, Issues Note No 2, July.
  • 4. Peterson, Luke Erik (2008) Round-Up: Where things stand with Argentina and its many investment treaty arbitrations, Investment Arbitration Reporter, 17 December, http://www.iareporter.com/articles/20090929_15 [02-09-2012].
  • 5. In 2008, the average salary for a teacher in Argentina was Arg$ 2158 per month (http://www.cippec.org/Main.php?do=documentsDoDownload&id=468), and for a doctor it was Arg$ 4000 (http://www.semanaprofesional.com/?nota=22581 and http://www.semanaprofesional.com/?nota=13220).
  • 6. Konrad, Sabine F./ Richman, Lisa M. (2011) Investment Treaty Protection for State Defaults on Sovereign Bonds – The Broader Implications of Abaclat et al. v. The Argentine Republic, K&L Gates Legal Insight, 17 October, p. 1, 4.
  • 7. Heneghan, Patrick/ Perkams, Markus (2012) The clawback – can arbitration help Greek bondholders against redress?, LegalWeek.com, 11 May, http://www.legalweek.com/legal-week/analysis/2173647/clawback-arbitratio... [15/06/2010].
  • 8. Nolan, Michael D./ Sourgens, Frédéric G. (2011) The U.S. And EU Debt Crises in International Law – A Preliminary Review, Wall Street Lawyer 15:10; Leijten, Marnix/ van Geuns, Edward (2011) Griekenland moet wel terugbetalen, Het Financieele Dagblad, 23 September; Strik, Daniella (2012) Proposed Greek Collective Action Clauses Law May Trigger Its International Law Obligations, http://kluwer.practicesource.com/blog/2012/proposed-greek-collective-act... [11-07-2012].
  • 9. The American Lawyer (2012) Firm profiles. Milbank, Tweed, Hadley & McCloy, http://www.americanlawyer.com/firmProfile.jsp?name=Milbank%2C+Tweed%2C+H... [23-08-2012]. Based on an exchange rate of 1EUR = 1.295USD (31 December 2011).
  • 10. German law firm Gröpper Köpke is representing a group of 500 German lenders, seeking around €100 million in damages. US-based firms Brown Rudnick and Bingham McCutchen have also been reported to have offered bondholders similar advice. See, Karadelis, Kyriaki (2012) Greece. A new Argentina?, Global Arbitration Review, 12 June, http://www.globalarbitrationreview.com/news/article/30603/greece-new-arg... [13-06-2012].
  • 11. The number of treaty cases was provided for Global Arbitration Review (GAR) by the law firms and has not been verified by GAR. They relate to investment arbitrations that were active in September 2011, source (unless otherwise indicated): http://www.globalarbitrationreview.com/gar100/.
  • 12. Examples include Allen & Overy (UK), Baker & McKenzie (US), Baker Botts (US), Clifford Chance (US), Covington & Burling (US), de Brauw Blackstone Westbroek (NL), Dechert (US), Derains & Gharavi (F), Herbert Smith Freehills (UK), Lalive (CH), Mannheimer Swartling (SE), Milbank, Tweed, Hadley & McCloy (US), Skadden, Arps, Slate, Meagher & Flom (US), Squire Sanders (US), Volterra Fietta (UK), Weil, Gotshal & Manges (US), Wilmer Cutler Pickering Hale and Dorr (US) and Wolf Theiss (AT).
  • 13. See endnote 11.
  • 14. Unless otherwise indicated, figures in this column are taken from American Lawyer magazine (the Global 100, the Am Law 200, or the magazine’s profiles of individual firms).
  • 15. Ibid.
  • 16. Based on calculations by the authors, drawing from cases mentioned by American Lawyer magazine, on company websites, by Investment Arbitration Reporter (http://www.iareporter.com/) and on the Investment Treaty Arbitration portal (http://italaw.com/).
  • 17. Chambers Associate (2012) Curtis, Mallet-Prevost, Colt & Mostle LLP, http://www.chambers-associate.com/Law/FirmFeature/3832 [23-10-2012].
  • 18. According to Amy Fantini Deschodt, media manager at Cleary Gottlieb, the firm was involved in more than 10 investor-state treaty cases in 2011. Email from Amy Fantini Deschodt to Corporate Europe Observatory, dated 28 August 2012.
  • 19. According to Barry Appleton, managing partner of Appleton & Associates, the firm was involved in 10 or more investor-state treaty cases in 2011. Email from Barry Appleton to Corporate Europe Observatory, dated 21 August 2012.
  • 20. Zeughauser Group (2012) ZGuide to leading law firms, p. 44.
  • 21. Ibid.
  • 22. Freshfields Bruckhaus Deringer (2010) Bilateral investment treaties. Managing the risk of government intervention, June, p. 2.
  • 23. Markert, Lars (2012), see endnote 1.
  • 24. Casley Gera, Ravinder (2009) The Globalisation of Arbitration, The Chambers Magazine, http://www.chambersmagazine.co.uk/Article/The-Globalisation-of-Arbitration [16-05-2012].
  • 25. Peterson, Luke Eric (2010) Investor and lawyers fall out over contincengy-fee arrangement in aftermath of ICSID arbitration, Investment Arbitration Reporter, 7 May, http://www.iareporter.com/articles/20100507_6 [15-06-2012].
  • 26. Global Arbitration Review (2012) Global Arbitration Review 100. The guide to specialist arbitration firms 2012, p. 3.
  • 27. Ibid.
  • 28. Casley Gera, Ravinder (2009), see endnote 24.
  • 29. Global Arbitration Review (2009) Global Arbitration Review 100. The guide to specialist arbitration firms 2009, p. 2.
  • 30. Gottwald, Eric (2007) Leveling the Playing Field: Is it Time for a Legal Assistance Center for Developing Nations in Investment Treaty Arbitration?, American University International Law Review 22:2, 237-275, pp. 252ff.
  • 31. Bouc, Frantisek/ Aust Ondrej (2009) Česko našlo rcept na arbitráže, Lidove Noviny, 9 July.
  • 32. Global Arbitration Review (2012), see endnote 26, p. 4.
  • 33. K&L Gates (2012) International Arbitration. Why K&L Gates? Key distinguishing features of our arbitration practice, p. 1.
  • 34. White & Case/ Queen Mary University of London International School of Arbitration (2010) 2010 International Arbitration Survey. Choices in International Arbitration, p. 27.
  • 35. Global Arbitration Review (2012), see endnote 26, p. 4.
  • 36. With 25 lawyers sitting as arbitrators Freshfields is the market leader, see: Global Arbitration Review (2012) Freshfields Bruckhaus Deringer, http://www.globalarbitrationreview.com/journal/article/30337/freshfields... [16-08-2012].
  • 37. Email communication with Nathalie Bernasconi-Osterwalder, senior lawyer at the International Institute on Sustainable Development (IISD), 24 August 2012.
  • 38. Global Arbitration Review (2009), see endnote 29, p. 31.
  • 39. King & Spalding (2011) Client Alert. Crisis in Libya: What Legal Options are Available to Oil and Gas Companies?, May.
  • 40. Freshfields Bruckhaus Deringer (2011) Investments in Libya. Potential claims under Bilateral Investment Treaties and political risk insurance policies, March, p. 2.
  • 41. King & Spalding (2011), see endnote 39.
  • 42. See, for example: Clifford Chance (2001) Contracts with Libyan State agencies – implications of the current crisis, March; Annacker, Claudia/ Maydell, Niklas (2001) Libyen: Entschädigung für Investoren im Kriegsgebiet, Die Presse, http://diepresse.com/home/wirtschaft/recht/684109/Libyen_Entschaedigung-..., 8 August; Fulbright (2011) New Business Opportunities Expected, but Are Troubling Times Also Ahead for Investors in Libya?, September, http://www.fulbright.com/index.cfm?fuseaction=publications.detail&pub_id... [17-05-2012].
  • 43. Schreuer, C. H. (2011) The Protection of Investments in Armed Conflicts, advance publication, Transnational Dispute Management, June.
  • 44. K&L Gates (2011) Arbitration Alert. International Arbitration against Hungarian Special Sales Tax, 17 January.
  • 45. Poulton, Ed/ Davies, Richard (2011) Vattenfall v Germany: the nuclear option and investment arbitration, Commercial Dispute Resolution, 10 November, http://www.cdr-news.com/arbitration-and-adr/112-articles/1554-vattenfall... [19-05-2012].
  • 46. White & Case (2012) Indian Patent Office Grants Compulsory License for Bayer’s Nexavar. Implications for Multinational Drug Companies, April, http://www.whitecase.com/alerts-04022012/ [28-08-2012].
  • 47. Interview with Nathalie Bernasconi-Osterwalder, senior lawyer at the International Institute on Sustainable Development (IISD), 15 June 2012.
  • 48. Markert, Lars (2012), see endnote 1.
  • 49. See, for example, the reflection of General Electric’s in-house counsel Michael McIlwrath about a recent visit from a specialised arbitration firm advertising its services. McIlwrath felt treated as “fungible” and that General Electric’s interest in mediation (in contrast to arbitration) was ridiculised “as a cute personal hobby”; http://kluwerarbitrationblog.com/blog/2011/04/12/anti-arbitration-feedba... [28-08-2012].
  • 50. Interview with Nathalie Bernasconi-Osterwalder, see endnote 47.
  • 51. Interview with Gus Van Harten, Associate Professor Osgoode Hall Law School, York University, Toronto, 30 November 2011.
  • 52. Nolan, Michael/ Baldwin, Teddy (2012) Minimising Risk in the Face of Government Action, Project Finance International, 16 May, 47-49, p. 49, footnote 1.
  • 53. Germany Trade & Invest (2011) Hilfe, ich werde enteignet! Abkommen schützen Auslandsinvestitionen. p. 5; translation: Pia Eberhardt.
  • 54. Arbitration International (2008) Birth of an ICSID Case – Act I, Scene I, Arbitration International 24:1, 5-15, pp. 6ff.
  • 55. Global Arbitration Review (2010) Global Arbitration Review 100. The guide to specialist arbitration firms 2010, p. 50.
  • 56. Own calculations based on the cases against Argentina listed on the ICSID website on 23 February 2012, http://icsid.worldbank.org [23-02-2012].
  • 57. Goldhaber, Michael D. (2007) Houston, We Have an Arbitration, Focus Europe, 2-4, p. 3.
  • 58. King & Spalding (2011) Annual Review 2011, p. 5.
  • 59. Bishop, Doak R./ Dimitroff Sashe D./ Miles, Craig S. (2001) Strategic Options Available When Catastrophe Strikes the Major International Energy Project, Texas International Law Journal 36, 635-688, p. 636.
  • 60. See the website http://chevrontoxico.com/. For Chevron’s version of the story, see http://www.theamazonpost.com/.
  • 61. The Chevron Pit (2012) Maria Aguinda. The Grandmother Who Beat Chevron, http://thechevronpit.blogspot.de/2012/04/maria-aguinda-grandmother-who-b... [05-04-2012].
  • 62. Amazon Defense Coalition (2012) Chevron’s Arbitrator Suffers from Acute Ethical Problems, Ecuadorians Assert, http://chevrontoxico.com/news-and-multimedia/2012/0223-chevrons-arbitrat... [10-03-2012].
  • 63. Ross, Alison (2012) Tawil and Stern step away from tribunal, Global Arbitration Review, 23 February, http://www.globalarbitrationreview.com/news/article/30195/tawil-stern-st... [23-03-2012].
  • 64. King & Spalding (2011), see endnote 58, p. 13.
  • 65. King & Spalding (2012) International Arbitration. Overview, http://www.kslaw.com/practices/International-Arbitration/Overview [22-02-2012].
  • 66. Global Arbitration Review (2010), see endnote 55, p. 50.
  • 67. King & Spalding (2012) Guillermo Aguilar-Alvarez, http://www.kslaw.com/people/Guillermo-Aguilar-Alvarez [10-03-2012].
  • 68. King & Spalding (2012) International Arbitration, http://www.kslaw.com/practices/International-Arbitration/Matters [10-03-2012].
  • 69. Germany Trade & Invest (2011), see endnote 54, p. 9; translation: Pia Eberhardt.
  • 70. Greider, William (2001) The Right and US Trade Law. Invalidating the 20th Century, The Nation, http://www.thenation.com/article/right-and-us-trade-law-invalidating-20t... [05-09-2012].
  • 71. Zachary Douglas of Matrix Chambers and the Graduate Institute in Geneva (at the time still at Cambridge University) identified this trend in a conference in Frankfurt, 1-3 December 2009. European Commission (2009) Mission Report. 50 years of Bilateral Investment Treaties Conference – Frankfurt 1-3 December 2009, p. 4. Obtained under the EU’s freedom to information regulation.
  • 72. For a broad analysis of investment arbitration and governments abandoning legislation because of the threat of huge damage claims, see: Tienhaara, Kyla (2010) Regulatory chill and the threat of arbitration, in: C. Brown and K. Miles (eds) Evolution in Investment Treaty Law and Arbitration, 606-627.
  • 73. Greider, William (2001), see endnote 70.
  • 74. Goldhaber, Michael (2009) Playing 3-D Chess, The American Lawyer, 1 July, http://www.law.com/jsp/PubArticle.jsp?id=1202431685556 [10-05-2012].
  • 75. CME Czech Republic B.V. vs. The Czech Republic and Ronald S. Lauder vs. the Czech Republic (both UNCITRAL proceedings).
  • 76. Gadelshina, Elvira R. (2011) Major Pitfalls for Foreign Investors in Russia. What Are Russion BITs Worth?, Kluwer Arbitration Blog, http://kluwerarbitrationblog.com/blog/2011/12/01/major-pitfalls-for-fore... [20-05-2012].
  • 77. Amsterdam, Robert (2008) The Resource Nationalism Checklist, http://corporateforeignpolicy.com/corporate-foreign-policy/the-resource-..., 17 April [16-05-2012].
  • 78. Tokios Tokelės vs. Ukraine (ICSID Case No. ARB/02/18).
  • 79. SOMO (2011) Dutch Bilateral Investment Treaties: A gateway to ‘treaty shopping’ by multinational corporations for investment protection.
  • 80. Geuze, Niels/ Rebergen, Mark (2012) Benefits of structuring foreign energy investments through the Netherlands, Oil&Gas Financial Journal, 1 February, http://www.ogfj.com/articles/print/volume-9/issue-2/department/capital-p... [16-05-2012].
  • 81. Baker & McKenzie (2011) How the Netherlands Bilateral Investment Treaty with China Offers Protection of your Chinese Investments, January.
  • 82. Clifford Chance (2011) Australia says good-bye to neutral investor-state dispute resolution, June, p. 3.
  • 83. Based on an exchange rate of 1EUR = 1.352USD (17 April 2009).
  • 84. Bernasconi, Nathalie (2009) Background Paper on Vattenfall v. Germany Arbitration, IISD; Rechtsanwälte Günther (2012) Briefing Note. The Coal-fired Power Plant Hamburg-Moorburg, ICSID proceedings by Vattenfall under the Energy Charter Treaty and the result for environmental standards, 11 April.
  • 85. Luther (2011), International Arbitration, p. 2.
  • 86. Based on an exchange rate of 1EUR = 1.244USD (31 May 2012).
  • 87. PowerShift (2012) Der deutsche Atomausstieg auf dem Prüfstand eines internationalen Investitionsschiedsgerichts? Hintergründe zum neuen Streitfall Vattenfall gegen Deutschland (II), October.
  • 88. Global Arbitration Review (2012), see endnote 26, p. 78.
  • 89. Global Arbitration Review (2011) Global Arbitration Review 100. Mannheimer Swartling, http://www.globalarbitrationreview.com/journal/article/29175/mannheimer-... [08-11-2012].
  • 90. Global Arbitration Review (2012), see endnote 26, p. 78.
  • 91. Mannheimer Swartling (2012) Dispute Resolution – Investment Treaty Arbitration, http://www.mannheimerswartling.se/en/Activity/Activity-groups/Litigation... [14-05-2012].
  • 92. Global Arbitration Review (2011), see endnote 89.
  • 93. Mannheimer Swartling (2012) News. Kaj Hobér appointed Professor of International Investment and Trade Law at Uppsala University, 28 March, http://www.mannheimerswartling.se/en/News/Latest-news/Kaj-Hober-appointe... [14-05-2012].
  • 94. Global Arbitration Review (2012) GAR 100 – 5th edition, http://www.globalarbitrationreview.com/surveys/survey/628/GAR-100/ [14-05-2012].
  • 95. Luther (2012) Luther – die Unternehmeranwälte, http://www.luther-lawfirm.com/ueberuns.php?r=1 [15-05-2012]; translation: Pia Eberhardt.
  • 96. Luther (2011), see endnote 85, p. 10.
  • 97. Konrad, Sabine (2012) Investment Protection at Risk, K&L Gates (2012) K&L Gates Global Government Solutions 2012. Annual Outlook, 21-22.
  • 98. Juve (2012) Ausbau. K&L Gates verstärkt Schiedsverfahrens- und Arbeitsrecht, http://www.juve.de/nachrichten/namenundnachrichten/2012/01/ausbau-kl-gat... [14-05-2012].
  • 99. Van Harten, Gus (2012) Pro-Investor or Pro-State Bias in Investment-Treaty Arbitration? Forthcoming Study Gives Cause for Concern, Investment Treaty News, 13 April, http://www.iisd.org/itn/2012/04/13/pro-investor-or-pro-state-bias-in-inv... [18-06-2012].
  • 100. Markert, Lars (2012), see endnote 1.
  • 101. Lalive/UNITAR (2012) Introduction to Investment Arbitration (2012), http://www.unitar.org/event/laliveunitar-introduction-investment-arbitra... [04-09-2012].
  • 102. See the website of Africa International Legal Awareness (AILA), http://www.aila.org.uk/.
  • 103. Hogan Lovells (2011) Investment Protection and Arbitration, p. 8.
  • 104. See, for example, ACCI (2012) Australian Foreign Investment Requires Right to Sue Foreign Governments, 9 August, http://acci.asn.au/Research-and-Publications/Media-Centre/Media-Releases... [04-09-2012].
  • 105. For the following section and more information about the corporate lobby battle against investment treaty reform in the EU, see: Corporate Europe Observatory (2011) Investment rights stifle democracy, 31 March.
  • 106. Interview with international investment law researcher who asked to remain anonymous, 1 June 2012.
  • 107. Gaillard, Emmanuel (2011) Menaces sur la protection des investissements en Europe, Option Droit et Affaires, May 11, p. 8.
  • 108. van Geuns, Edward/ Jansen, Nani (2011) Protecting investments post-Lisbon Treaty, Global Arbitration Review 6:1, 1-2; Konrad, Sabine (2012), see endnote 97.
  • 109. Based on an exchange rate of 1EUR = 1.429USD (1 October 2008).
  • 110. Hall, David (2010) Challenges to Slovakia and Poland health policy decisions: use of investment treaties to claim compensation for reversal of privation/liberalisation policies, January.
  • 111. The Metropolitan Corporate Counsel (2012) Protecting Your Company’s Global Interests Using Treaty-Based International Arbitration, http://www.metrocorpcounsel.com/articles/19649/protecting-your-company%E... [05-07-2012].
  • 112. Paulsson, Jan (1995) Arbitration Without Privity, Foreign Investment Law Journal 10:2, 232-257, p. 232.
  • 113. Peterson, Luke (2012) As United States is hit with another arbitration claim, pharma companies are growing creative in their use of investment treaties, IA Reporter, 13 March, http://www.iareporter.com/articles/20120314 [05-09-2012].
  • 114. Greenberg Traurig: People. Regina K. Vargo, http://www.gtlaw.com/People/ReginaKVargo [17-05-2012].
  • 115. Global Arbitration Review (2009), see endnote 29, p. 25.
  • 116. Wallach, Jason (2007) Ex-USTR Negotiator Vargo Key in CAFTA Case, 28 March, http://upsidedownworld.org/main/news-briefs-archives-68/678-ex-ustr-nego... [17-05-2012].
  • 117. See, for example, UNCTAD (2003) Round of Negotiations of Bilateral Investment Treaties for English-Speaking African Least Developed Countries. Final report.
  • 118. Sidley Austin (2012) Our Practice. International Arbitration (Commercial and Treaty), http://www.sidley.com/internationalarbitration/ [22-08-2012].
  • 119. Greider, William (2001), see endnote 70.
  • 120. Paulsson, Jan (1995), see endnote 112, p. 232.
Why do law firms deal with investment law?  One reason is clear: because of the money.  [...] Cases are incredibly long, incredibly complex and you make a lot of money.Lars Markert, Gleiss Lutz1The debt crisis in Greece grabbed the attention of the world in 2011. With an enormous budget deficit, violent protests and public spending cuts that devastated the lives of ordinary people, the country appeared to be constantly on the brink of collapse. Without massive restructuring to reduce the debt, Greece’s survival was under threat. And with it that of Europe’s economy. Several international law firms were also watching Greece – but their concern was not to save the Greek people from social disaster or prevent economic collapse in Europe.In the midst of the debt crisis, lawyers urged multinational corporations to use investment arbitration to defend their profits in Greece. The German law firm Luther, for example, told its clients that, where states were unwilling to pay up, it was possible to sue on the basis of international investment treaties. Luther suggested that “Greece’s grubby financial behaviour” provided a solid basis for seeking compensation for disgruntled investors, paid for ultimately by Greek taxpayers2.The lawyers’ enthusiasm was not based in fantasy. The UN has recognised that international investment agreements can severely curb states’ abilities to fight financial and economic crises3. Argentina has been sued more than 40 times as a result of the economic reform programmes implemented after its economic crisis in 2001. By the end of 2008, awards against the country had reached a total of US$1.15 billion4. That’s the equivalent of the average annual salary for 150,000 Argentinian teachers or 95,800 public hospital doctors5.Analysing one of the pending disputes against Argentina in an October 2011 client briefing paper, US-based law firm K&L Gates wrote that investment treaty arbitration could “recover damages for investment losses from nations defaulting on their sovereign debts.” It continued: “Given the current financial crises worldwide, this should provide hope for investors who have suffered losses at the hands of sovereign restructuring of their debt instruments”. The firm identified Greece as a country where investors should check which investment treaties “may protect their investment”. The firm also suggested clients should use the threat of investment arbitration as a “bargaining tool” in debt restructuring negotiations with governments6.The legal sharks have already started circling the fall-out from the Greek sovereign debt restructuring.Patrick Heneghan & Markus Perkams, Skadden7US law firm Milbank, the Dutch firm De Brauw and UK-based Linklaters all took a similar line8, preparing the ground for billion dollar claims against a cash-strapped country struggling to restore its economy. While their profits per partner climbed to up to US$2.5 million in 2011 (at Milbank), Greece lowered the monthly minimum wage for workers under 25 to €510 (US$ 660)9.In March 2012, after long negotiations between the EU and the banks, funds and insurers owed money by Greece, most accepted to ease repayment terms. Soon after, several law firms announced that they would seek millions in damages on behalf of lenders refusing to accept the debt swap10.The Greek debt crisis case stands out as just one example in a highly lucrative investment arbitration business. It suggests a new breed of international ‘ambulance chasers’ has emerged on the global stage. The term ‘ambulance chasers’ originated in the late 19th Century and referred to lawyers who sought to profit from someone’s injury or accident, following hospital wagons to the emergency room in search for legal clients. Today’s ambulance chasing has gone global, with international law firms encouraging multinationals to sue governments in international investment disputes – wreaking havoc on public finances, social, health and environmental policies.Table 1The 20 busiest investment arbitration law firmsThese law firms claimed involvement in the most investment treaty disputes in 201111. Please note the numbers are those provided by the firms themselves, have not been externally verified, and some firms did not provide any data. The importance of law firms which are not on the list should not be underestimated as they may also handle disputes with huge implications for the public interest and be important actors in the world of investment arbitration12.Law firmNumber of treaty cases in 201113Gross revenue in 2011 (US$)14Profits per partner in 2011 (US$)15Does the firm work for investors or states?16Prominent investment treaty arbitratorsWhat you s hould know about the firmFreshfields Bruckhaus Deringer (UK)711.82 billion2.07 millionBoth – but represented the investor in majority of known casesJan Paulsson, Noah Rubins, Lucy Reed, Nigel BlackabyBy far the dominant investment arbitration firm in the past decadeWhite & Case (US)321.33 billion1.47 millionBoth – probably with more work for statesCarolyn Lamm, Charles Brower (until 2005), Horacio Grigera Naón (until 2004)Representing Italian bondholders in their multi-billion dollar arbitration against Argentina following the country’s sovereign debt restructuring in the aftermath of its 2001 financial crisis (see page 19).King & Spalding (US)27781 million1.93 millionWorks for investors – with very few exceptionsDoak Bishop, Guillermo Aguilar-Alvarez, Eric Schwartz, John SavageSpecialises in suing Argentina and in dirty energy claims as in Chevron vs. Ecuador (see page 25). Acting for US group Renco, seeking US$800 million from Peru over a metal smelter deemed one of the world’s most polluted industrial sites.Curtis Mallet-Prevost, Colt & Mosle (US)20165 million1.54 millionIn investment disputes, the firm always represents the state, never the investor The firm’s revenue increased 50% between 2007 and 2012, thanks largely to its investment arbitration work for states such as Venezuela, Kazakhstan and Turkmenistan17.Sidley Austin (US)181.41 million1.60 millionBoth – but probably with more work for companiesStanimir Alexandrow, Daniel Price (until 2011)Together with Lalive, Sidley represents tobacco giant Philip Morris in its case against Uruguay, challenging the country’s restrictions on cigarette marketing (see page 13).Arnold & Porter (US)17639 million1.40 millionBoth – but probably with more work for statesJean Kalicki, Whitney DebevoiseTogether with Ogilvy Renault (now merged with Norton Rose) the firm sued Canada for paper maker Abitibi-Bowater because a provincial government had taken back its water and timber rights – after the company had closed its mills. Canada paid US$130 million to settle the case, the largest known payment so far under NAFTA.Crowell & Moring (US)13329 million845 thousandWorks for investors – with very few exceptions The firm represents Canadian mining company Pacific Rim in its legal battle with El Salvador, claiming around 1% of the country’s GDP because it did not approve a license to mine for gold.K&L Gates (US)131.06 billion890 thousandBothSabine KonradWhenever energy giant Vattenfall sued Germany, the government picked Sabine Konrad as counsel – despite her promotion of investment arbitration against states (see pages 19 and 27).Shearman & Sterling (US)12750 million1.56 millionBoth – but investor’s counsel in large majority of known casesEmmanuel Gaillard, Philippe Pinsolle, Fernando Mantilla-Serrano, Yas BanifatemiElite arbitrator Emmanuel Gaillard is the figurehead of the firm, attracting vast amounts of work as counsel. One of the industry’s intellectual lions, he constantly intervenes in political and academic debates about investment law and arbitration (see pages 28, 41, 47).DLA Piper (US)112.24 billion1.22 millionBothPedro Martinez-FragaThe world’s second-largest law firm represents investors in several ICSID cases against Venezuela, all filed days before the country’s withdrawal from the centre took effect in summer 2012.Chadbourne & Parke (US)11306 million1.31 millionInvestor The firm is a prime example of the opacity of international investment arbitration. It claims to have acted in 11 disputes in 2011, but none are listed on its website.Cleary Gottlieb Steen & Hamilton (US)more than 10181.12 billion2.69 millionBoth Cleary Gottlieb represented Telecom Italia in a claim against Bolivia. Reacting to Telecom Italia’s faulty service and low investment, Bolivia re-nationalised the telecoms firm Entel. Bolivia paid US$100 million to settle the case.Appleton & Associates (CAN)10 or more19no datano dataThe firm always represents the investor, never the state Barry Appleton brought some of the first NAFTA cases against Canada for the firm, including acting for Ethyl following the ban of a toxic gasoline additive. The case settled when Canada repealed the ban and paid US$13 million in compensation. Appleton still sues Canada regularly.Foley Hoag (US)10149 million1 millionStateMark ClodfelterIn investment arbitration, the firm works mainly for states; several of its lawyers have a background in government.Latham & Watkins (US)102.15 billion2.27 millionBothRobert Volterra (until 2011)In one of the first investment arbitrations following the Arab Spring, the world’s fourth largest law firm is representing multinational Indorama against Egypt. An Egyptian court ordered Indorama to return a textile factory, which it had acquired under the Mubarak regime, seemingly under corruption-riddled circumstances.Hogan Lovells (US/UK)101.66 billion1.16 millionBoth, probably with more work for states Represents British company Churchill in its US$2 billion claim over the revocation of coal mining permits on the Indonesian island of Borneo. Indonesian courts had ruled the permits were forged.Clyde & Co (UK)10460 million915 thousandBoth, probably with more work for investors First foreign law firm to open an office in post-Gaddafi Libya, anticipating disputes as a result of regime change (also see page 23).Norton Rose (UK)101.32 billion620 thousandTends to work for investorYves Fortier (until 2011), Michael Lee (until 2001)In 2011, Norton Rose merged with Canadian Ogilvy Renault, which has represented investors in controversial cases against Canada, including challenging a pesticide-ban for US-based Dow. After more than 50 years with the firms, full-time arbitrator Yves Fortier left in 2011, citing potential conflicts of interest between his work as arbitrator and the client work in a global law firm (see page 39).Salans (F)9260 million20725 thousand21Both, probably with more work for investorsBart Legum, Jeffrey Hertzfeld, Hamid Gharavi (until 2008)The head of investment arbitration, Barton Legum, was a US government lawyer and defended the country in several NAFTA disputes. Today, he sells the insights he gained to Canadian pharmaceutical company Apotex, suing the US under NAFTA’s investment chapter (see page 29).Debevoise & Plimpton (US)9675 million2.07 millionRepresented the investor in nearly 100% of known casesDonald Francis DonovanTogether with Covington & Burling, Debevoise won the largest known ICSID award, US$1.76 billion plus millions in interest, for US-based Occidental Petroleum against Ecuador, for the termination of an oil production site in the Amazon. Oxy has been accused of human rights violations and environmental destruction.Big Business for Big LawGlobally, three firms have emerged as market leaders in the investment arbitration business: Freshfields Bruckhaus Deringer (UK), White & Case (US) and King & Spalding (US) (see table 1 on pages 20-21). Freshfields alone claims to have acted in more than 165 investor-state disputes22. Such dominance creates a reputation for these firms, which in turn brings new cases and leads to a concentrated market that is difficult for newcomers to enter. One practitioner estimates that 25 out of 30 new cases at the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) go to the heavyweights in the field23. Non-Western law firms from the countries most sued by investors scarcely get a look in.In any arbitration, the primary cost is the cost of the lawyers.Gabriele Crespi Reghizzi, Professor, arbitrator and of counsel Lombardi Molinari e Associati24Lawyers at elite arbitration law firms charge up to US$1,000 per hour for their services, with cases often handled by teams of lawyers and taking years. The consequent legal bill for countries defending cases can be staggering. (see box 3 on page 15)Arbitration lawyers also profit when cases settle before a final trial, as happens with many disputes. Contingency fee arrangements, where lawyers only get their full payment if they win the case or it is favourably settled, usually as a percentage of the client’s net recovery, are becoming more commonplace, which means that the lawyers can receive a substantial fee even without lengthy litigation. In one reported case, the law firm King & Spalding allegedly claimed over 80% of a US$133 million award from its client25.Law firms know the unwritten rules of the gameAn anecdote in the Global Arbitration Review (GAR) 100, a yearly survey of specialised arbitration firms, indicates why arbitration lawyers have become such high-priced actors. The story is about a university lecture on international arbitration by Matthew Weiniger from the UK-based law firm Herbert Smith Freehills, who regularly appears before arbitration tribunals. He compared the UK’s two volumes of court rules and procedure with a thin booklet produced by the International Chamber of Commerce. “The difference between those two thicknesses,” Weiniger explained to his students, “is what international arbitration lawyers know. And it’s not written down”26.It is this “lack of rules and regulations to consult” that leaves many young lawyers who enter the field of international arbitration “feeling almost queasy,” according to GAR. “They’re disoriented to be in a world where case procedure can be entirely ad hoc.” International arbitration does not even look like a legal proceeding. An outsider would “see two small groups of lawyers wearing lounge suits, occupying a hotel room or training room. On the other side of the room: a trio of types with possibly a bit more grey hair. There’s no audience, no usher and little hint of pomp or ceremony. It could perhaps be mistaken for a training course”27. Or a business meeting.Hiring some of the rare advocates with inside knowledge about this mysterious universe offers a significant advantage. A practitioner from Swiss firm Schellenberg Wittmer explained: “Who should we choose as arbitrators? How many witnesses should we have? How many written submissions? Should we allow written witness statements? You have to be aware of these issues to know what’s good for your case and what is not”28.It is often observed that ‘arbitration is only as good as the arbitrators you choose’. Arguably, the process starts one step earlier. Pick the right counsel, and you start a chain reaction that ought to end somewhere positive.Global Arbitration Review29Countries which can’t afford this kind of expertise often find their defence case suffers from scattered and incomplete sources of investment law and jurisdiction30. The Czech Republic, for example, only managed to successfully defend its cases when it turned away from domestic lawyers and hired some of the costly international elite firms31. The secrecy of the investment arbitration regime secures the market of the leading firms.Know your ‘judge’, be the ‘judge’Specialised arbitration lawyers have another advantage. They know the ‘judges’. And the ‘judges’ know them. As one arbitration lawyer boasted: “I’ve got a case right now in front of [a leading international arbitrator]. Every time I go to a conference, he’s there. We read each other’s books. My opponent on the case... well, he hasn’t got a clue […]. Between all the partners in our group [...] we’ve appeared before every single arbitrator worth knowing. Not just once, but multiple times in the past few years and we have the inside knowledge as a result of that”32.The better you know an arbitrator, the better you know how to convince them. Familiarity also increases your chances of picking someone who will rule in your favour. As K&L Gates has claimed: “Our knowledge of arbitrators means we are also well placed to ensure that your case is presented in such manner [sic] as is most likely to appeal to the majority of the tribunal, bearing in mind their particular likes/dislikes and their overall approach”33. No wonder, parties tend to rely on suggestions from counsel when appointing arbitrators. That way, specialised arbitration lawyers become the “gatekeepers” of the arbitration community, and keep it close-knit34.It all comes down to an old adage, ‘know your judge’ – and its even more important other half, ‘make sure your judge knows you’. The longer an advocate spends in the presence of adjudicators, the better his or her chances of being persuasive in front of them.Global Arbitration Review35As many as two dozen senior lawyers in the top firms also act as arbitrators36, opening a Pandora’s box of potential conflicts of interest because of their vested interest in growing their own business. An arbitrator might, for example, be tempted to make a decision that will favour a client whom they represent as counsel in another case. Some suggest that the dual role of arbitrator and counsel is “one of the most significant problems of the investment arbitration regime”37. But according to one of the leaders in the arbitrator market, Swiss firm Lalive: “the lawyer who regularly sits as an arbitrator is the more astute advocate”38. (see also chapter 4)Multiplying arbitrations against countriesCrisis in Libya: What Legal Options are Available to Oil and Gas Companies?‘Client alert’ issued by King & Spalding in the midst of the 2011 Libyan civil war39Turning international investment arbitration into a lucrative business has provided a great incentive for smart lawyers to sustain and expand the system in order to maximise profits. Keeping corporate clients constantly informed about the opportunities for litigation is the bread and butter of an international investment arbitration lawyer. Fuelling claims against countries fighting a major economic crisis is one way to expand your business, but lawyers have also tried to profit from human disasters.Take the 2011 civil war in Libya. While the global public followed events fearing an imminent massacre, the arbitration industry was advising the multinational community how to defend its profits in the country. Freshfields suggested corporations could use investment treaties to sue the Libyan state with investors claiming financial compensation for the country’s failure to comply with promises “regarding physical security and safety of installations, personnel etc.”40. The new government might now have to compensate the companies that supported the dictatorial regime as a result of the shift towards democracy.King and Spalding similarly flagged up arbitration options available to oil and gas companies in Libya41, as did Clifford Chance, Cleary Gottlieb and Fulbright42. Renowned arbitrator Christoph Schreuer identified the “considerable” legal potential of investment treaties in situations such as the Libyan civil war, writing on the protection of investments in armed conflicts43.When Hungary introduced a tax on profitable companies to reduce its back-breaking public debt in 2011, law firm K&L Gates suggested some “attractive” arbitration options44. When Swedish energy giant Vattenfall announced arbitration against Germany’s phaseout of nuclear power (see box 5 on page 27), UK firm Herbert Smith Freehills analysed how investors “might seek redress in the UK should a similar decision be made here”45. When India allowed a generic drug producer to sell a cheaper version of a patented cancer drug in 2012, White & Case pointed out that patent-holding drug multinationals “may be able to seek relief under applicable bilateral investment treaties”46.I truly believe that the investment arbitration system wouldn’t exist the way it does today if it wasn’t for the lawyers.Nathalie Bernasconi-Osterwalder, International Institute on Sustainable Development (IISD)47Specialised arbitration firms run huge marketing departments identifying potential hooks for investment claims, targeting investors48. Not every company follows their advice49, but the ambulance chasing of some law firms is nevertheless a driving force in the boom in international investment arbitration. As one lawyer explained: “Lawyers live on disputes. They create monsters like the current investment arbitration regime and hype it to produce work for themselves – as lawyers and arbitrators. I truly believe that the investment arbitration system wouldn’t exist the way it does today if it wasn’t for the lawyers”50.Investment arbitration lawyers are not just ambulance chasing. They are also creating the accidents because, doubling as arbitrators, they often interpret the treaties very broadly. So it’s a bit like ambulance chasing after your friend has put banana peels on the road.Professor Gus Van Harten, Osgoode Hall Law School, Toronto51Reining in democracyFor law firms looking to maximise profits from arbitration, state regulations to protect the environment, public health and social security have become lucrative business opportunities. As two lawyers from the law firm Milbank put it: “Adverse government actions do not have to take place only with autocratic rule. The populism that democracy can bring often is the catalyst for such actions”52.In a brochure entitled “Help, I am being expropriated!”, German law firm Luther has promoted scenarios such as new taxes, newly-introduced environmental laws, and reduced state-controlled prices as opportunities for investment arbitration. The abolition of tax privileges and special economic zones in the aftermath of Ukraine’s 2005 Orange Revolution was put forward as another example53.Extract from a role play to train practitioners54Investment lawyer: Well, I know you were looking for a tough litigator to help you in [imaginary country] Ruritania, but I’m here today to propose a completely different approach to this issue that you have in Ruritania, and we believe based on our experience that it is an approach which is much more likely to get you the kind of compensation that Toll-Stoy [an imaginary construction company] deserves.Toll-Stoy counsel: And what approach is this?Investment lawyer: Have you considered a claim under a BIT?Toll-Stoy counsel: A BIT?Investment lawyer: A Bilateral Investment Treaty.Toll-Stoy counsel: A Bilateral Investment Treaty? What’s that?[Lengthy exchange about the BIT system]Investment lawyer: Well, the BIT gets you out of Ruritanian courts and before a neutral independent body of arbitrators that has the power to render an award for millions of dollars for Toll-Stoy and you can take that award and have it treated as a judgement in a 142 countries around the world.Toll-Stoy counsel: Oh, now I’m interested.Tell me more.Box 4King & Spalding profileKing & Spalding shot into the top ranks of international arbitration firms in the last decade – focusing almost exclusively on investor-state arbitration. According to Global Arbitration Review the firm’s key to success was winning ICSID cases against Argentina55. King & Spalding represented investors in at least 15 out of the 49 ICSID cases filed against Argentina by February 201256, more than any other firm. Doak Bishop, co-head of the firm’s international arbitration group, is considered “the go-to lawyer for claims arising from Argentina’s peso crisis”57. He secured a staggering US$185 million in compensation for US firm Azurix which had taken over the privatised water and sewage system in the Buenos Aires region and which sued Argentina when the province’s water regulator blamed it for an algae outbreak in 2000.King & Spalding’s second speciality is working for “super-major and major international oil and gas companies”58. In the mid ‘90s, the firm opened a Houston office following a request by Houston-based oil giant Texaco, which wanted King & Spalding to handle its litigation needs. Since then, the firm has alerted energy companies to arbitration as one of the “strategic options available when catastrophe strikes the major international energy project”. “Catastrophes” have included a newly-elected government terminating a project, civil unrest and company executives arrested on criminal charges59. Energy-related disputes have become a large share of investor-state claims.King & Spalding is currently representing Chevron in a controversial dispute with Ecuador. Chevron initiated arbitration to avoid paying US$18 billion to clean up oil-drilling-related contamination in the Amazonian rainforest, as ordered by Ecuadorian courts. The case has been lambasted as “egregious misuse” of investment arbitration to evade justice60. Doak Bishop, on the other side, dismissed the rainforest communities who were harmed by Chevron’s ecological destruction as “irrelevant”61.The investor-appointed arbitrator in the Chevron-Ecuador case, Horacio Grigera Noan, has come under fire from the rainforest communities for his close business relationship with King & Spalding62. In another case of a US oil company against Ecuador, the investor-appointed arbitrator, Guido Tawil, resigned following allegations of an “extremely close connection and relationship” with King & Spalding, the oil company’s counsel63.King & Spalding has some 50 arbitration lawyers working from key arbitration hubs such as Washington, New York, Paris, London and Singapore64. Several of the firm’s lawyers sit as arbitrators and some hold positions in arbitral institutions such as the ICC’s International Court of Arbitration65. Margrete Stevens, “the most senior former ICSID official to go into private practice”66, joined King & Spalding after 17 years at ICSID. Her colleagues also have excellent contacts with investment policy-makers: Guillermo Aguilar-Alvarez, for example, used to be a legal advisor for the Mexican government in the NAFTA talks (North American Free Trade Agreement between the US, Canada and Mexico)67.King & Spalding lawyers have rarely represented the state in an investment dispute, acting on behalf of the company in 35 of the 37 investor-state disputes listed on its website in March 201268.Scaring governments into submissionArbitration lawyers also encourage their clients to use the threat of investment disputes as a way to scare governments into submission. According to Luther: “A settlement, which you should always aim for, is easier to reach under the shadow of a looming investment treaty claim”69. Luther was one of the firms involved in securing a settlement for Swedish energy giant Vattenfall against Germany, a typical case of a government lowering standards in the face of a large compensation claim (see box 5 on page 27).I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation […]. Virtually all of the new initiatives were targeted and most of them never saw the light of day.Former Canadian government official70These “pre-emptive strikes” seem to be on the rise, with investment arbitration no longer a last resort, but a political weapon in a wider war of attrition against states71. There is evidence that proposed and even already adopted laws on public health and environmental protection have been abandoned or watered down because of the threat of huge damage claims. Canada, for example, did not pursue certain anti-smoking policies after Big Tobacco threatened to seek compensation72. Five years after NAFTA’s investor-to-state provisions came into force, a former Canadian government official told a journalist: “I’ve seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law. Virtually all of the new initiatives were targeted and most of them never saw the light of day”73.Making money with 3-D chess:BIT s hopping and investment structuringLawyers also assist investors in picking the most investor-friendly treaties for their claims against states – what is known as ‘BIT shopping’(BIT = bilateral investment treaty). Thanks to their global reach, multinationals can sue the same country in several fora, on the basis of the same facts. In one of the most famous cases of this “multifront war” which has been compared to “3-D chess”74, US cosmetics billionaire Ronald Lauder sued the Czech Republic under the US-Czech BIT, and then again under the Netherlands-Czech BIT (the investment was structured via a Dutch vehicle). In the latter case, the Czech Republic was ordered to pay US$ 270 million plus interest, the equivalent of the country’s entire health budget. The first case was dismissed75.It is no crime to get smart about BIT-shopping.Elvira R. Gadelshina, Russian law firmYukov, Khrenox & Partners76Lawyers also advise their clients on what they euphemistically call “corporate structuring for investor protection” to ensure access to the most investor-friendly arbitration routes. Self-acclaimed ‘foreign policy lawyer’ Robert Amsterdam explained: “In order to take advantage of the strongest BITs, the investor should consider structuring the company through a third party state for greater security – i.e., a Canadian company seeking to invest in Bolivia may choose to establish a shell corporation in Sweden to be afforded the protective measures of a stronger treaty”77. Thanks to such an offshore construction, a ‘Lithuanian’ company could sue Ukraine under a BIT, even though it was 98% owned by Ukrainians78.With one of the world’s largest investment treaty networks, the Netherlands is a particularly popular “gateway for treaty-shopping”79. This is thanks to firms such as Amsterdam-based De Brauw Blackstone Westbroek touring the globe advertising investments in energy rich and developing countries ‘through’ the Netherlands80. US firm Baker McKenzie advises its US clients to structure investments in China through intermediary companies in the Netherlands – because there is no US-China investment treaty, but there is a Dutch one81. When the Australian government turned its back on investor-state arbitration in April 2011, Clifford Chance suggested the Netherlands as a “very popular choice” to Australian corporations still wanting to sue foreign states82.Box 5Representing VattenfallScorning the environment and democracyIn 2009, Swedish energy giant Vattenfall brought the first known investment treaty claim against Germany. The company demanded €1.4 billion (US$1.9 billion83) in compensation for environmental measures restricting the use and discharge of cooling water for a coal-fired power plant on the banks of the Elbe river in Hamburg. After Germany agreed to dilute environmental standards, a settlement was reached, worsening the effects that the power plant will have on the river and its wildlife84.Let him who desires peace prepare for war.Vegetius, 4th centuryWe are prepared.Law firm Luther advertising its arbitration work85Having tasted blood, Vattenfall launched its second investor-state challenge against Germany in May 2012, seeking damages related to two of its nuclear power plants. Following the Fukushima disaster and the German public’s hardened anti-nuclear stance, the German government had decided to phaseout nuclear energy. Vattenfall is claiming €3.7 billion (US$4.6 billion86) in compensation – even though its two plants were not operational when the phaseout decision was made87.In both cases, Vattenfall was represented by the German law firm Luther and the Swedish firm Mannheimer Swartling. These two boutiques are not among the world’s biggest, but their arbitration practice is global.Mannheimer Swartling’s 60-lawyer-strong dispute resolution team is the firm’s “dominant group”88 with lawyers based in Sweden, Germany and Hong Kong, as well as regularly jetting out to the Moscow office89. They specialise in energy and natural resource related disputes under BITs and the Energy Charter Treaty, often involving states of the former Soviet Union. Six of the firm’s lawyers sit as arbitrators90, including ex-White & Case lawyer Kaj Hobér who has appeared in more than 300 arbitrations91. As “one of the foremost current practitioner-academics”92, Hobér was appointed Professor at Uppsala University, Sweden, to lead Europe’s first MA programme in investment treaty arbitration93.Luther, is one of only three German outlets among the global top 100 arbitration firms94 and sees itself as a “business law firm” – “thinking and acting like businessmen”95. It, too, appears to specialise in disputes under the Energy Charter Treaty, with partner Richard Happ having spent part of his legal training in the Secretariat of the Energy Charter Conference96. Happ also sits as arbitrator and co-authored a brochure published by the German government, suggesting a number of public policies that are ripe for investment arbitration (see page 24).A third actor in the Vattenfall cases is the US firm K&L Gates, representing the German government. The latter does not seem to mind that the firm’s lawyers on the case, Sabine Konrad and Lisa Richman, are some of the most pro-active investment lawyers in seeking to trigger investment treaty cases against states. (see pages 19, 23). Konrad also sits as an arbitrator and mobilised against reform of the European investment policy (see page 28)97. She leads K&L Gates’ German arbitration practice together with Johann von Pachelbel, who was one of Mannheimer Swartling’s counsels for Vattenfall in the first case against Germany98.Paving the way for future claimsLaw firms also play a key role in ensuring that arbitration rulings are expansive and investor-friendly, increasing their future business. Should an aggrieved investor be allowed to bring parallel disputes on the basis of the same facts? Can a 98% Ukrainian-owned investor sue Ukraine through a Lithuanian holding company? Answers to such contested legal questions matter for the concrete case, but also for investors’ future chances of success. Research reveals that tribunals tend to resolve such issues with expansive, investor-friendly interpretations, paving the way for even more challenges against states99. But while the arbitrators ultimately decide on these questions, the parties’ lawyers play a key role in bringing the underlying arguments forward100. Another way for law firms to perpetuate and exacerbate the injustice of the investment arbitration system.Teaching governments, growing new clientsSpecialised arbitration law firms even seem to have negotiated some investment treaties for governments, and regularly instruct them about arbitrations and advise them on treaty drafting. Swiss law firm Lalive, for example, runs regulare-learning courses on investment arbitration for UNITAR, the UN organisation for capacity building in developing countries101. Officials from poor countries get extra scholarships – and Lalive benefits from a long list of potential new clients.In November 2011, a dozen government lawyers from Ghana, Gambia, Liberia, South Africa, Uganda and Egypt attended a full-week training on investment law and arbitration, sponsored by a number of large arbitration firms including Salans, Hogan Lovells, Volterra Fietta, WilmerHale and Allen & Overy – which provided the trainers102.We also advise governments on drafting and negotiating BITs and managing the risk of investment claims in the implementation of government policy.Hogan Lovells103Lobbying to kill investment treaty reformAs governments come to realise the threat that the international investment regime represents to responsible public policies, more and more are trying to reduce their legal exposure to investor-state disputes (see page 16). Industry associations and big law firms have mounted fierce lobbying campaigns to counter any reform process, propping up an unjust but highly lucrative system104.The current debate in the EU is a case in point105. With the coming into force of the Lisbon Treaty in 2009, lawyers faced the risk of radical reform of investment treaties in the EU. Trade unions and civil society groups had long called for an overhaul of EU member states’ BITs to guarantee a greater balance between public and private interests. They advocated a whole new generation of agreements: without investor-state dispute settlement, with investor obligations, with more precise and restrictive language regarding their rights, and with explicit references to countries’ right to regulate. Some members of the European Parliament (MEPs) were also moving in that direction.There are people within the system who are very supportive of the way it currently operates and do a lot to encourage governments to sign treaties. They work as lawyers, they advise governments, they tell governments that actually all these concerns about investment treaties are exaggerated and that they should keep signing them.International investment law researcher106But that was not what the arbitration industry had in mind. To influence the debate, firms such as Hogan Lovells, Herbert Smith Freehills and Baker McKenzie invited EU policy-makers to “informal but informed” debates with their multinational clients – including several which have sued states under investment treaties such as Deutsche Bank and Shell. Dutch law firm De Brauw sent an article to MEPs slamming the European Parliament’s moderate reform proposals. The message from these firms was clear. Existing BITs and the high standard of investor protection and in particular investor-to-state arbitration had to be maintained; and investment protection should not be linked to labour or environmental standards.Investment lawyers were also keen to retain the investment treaties that EU countries have signed amongst themselves. Elite arbitrator Emmanuel Gaillard of Shearman & Sterling warned of the “disastrous economic consequences” if they were abolished, as had been proposed107. De Brauw and K&L Gates echoed the warning108. But the firms discretely forgot to mention that they make considerable profits from these so called intra-EU BITs, suing the same EU governments that they were now lobbying to keep the legal base for this business intact. De Brauw, for example, is representing the Dutch insurance company Eureko in a €100 million (US$142 million109) claim against the Slovak government on the basis of a BIT between the Netherlands and Slovakia. The Slovak government had reversed the health privatisation policies of the previous administration, requiring health insurers to operate on a not-for-profit basis110.Investment lawyers walking in and out of governmentIn its fight against meaningful reform of international investment law, the arbitration industry can count on first-rate access to legislators and policy officials responsible for negotiating investment treaties and battling disputes. Many of these public servants roam the same conferences and socialise at the same gala dinners; while many in the arbitration circuit, and particularly in the US, have a background in government and international institutions (see box 6).The revolving door grants the arbitration industry valuable insider access. In an interview, former US government insider Theodore Posner who now works for the law firm Weil, Gotshal & Manges explained that he and others like him “know how government officials negotiate treaties and how they analyze the issues”. He is now lobbying to tailor future US investment treaties to his corporate clients’ needs111.The revolving door also breeds conflicts of interests by inviting public officials to use their positions for private gain, including for the benefit of future employers. Several of the NAFTA investment chapter negotiators and advisors have become household names in the arbitration industry, including Daniel Price who negotiated on the US side (see his profile on page 44), Jan Paulsson (see his profile on page 40) and King & Spalding’s Guillermo Alvarez Aguilar, who have both advised the Mexican government. The moment NAFTA was signed, these lawyers pushed companies to sue the three signatory states. In an article from 1995, Paulsson enthused about “this new territory for international arbitration” which only allows companies to sue the state and not the other way round112.Box 6Some emblematic revolving door casesBarton Legum of Paris-based law firm Salans, formerly with Debevoise & Plimpton, was with the US Department of State from 2000 to 2004. He was lead counsel defending the US against investor disputes and helped develop new investment treaties. Today, he is selling the insights he gained in that period to firms such as Apotex, a Canadian pharmaceutical company suing the US for at least US$520 million on the basis of NAFTA’s investment chapter113. Legum also sits as an arbitrator.Regina Vargo of K-street law firm Greenberg Traurig, joined the firm after more than 30 years in US government, including as chief negotiator for free trade and investment agreements such as CAFTA-DR (U.S.-Central America Dominican Republic agreement)114. According to one colleague “no one has been more up close and personal with the CAFTA”115. In the first investor-state claim under the treaty, Vargo obtained an award of around US$12 million from the Guatemalan government for a US railway investor. A trade unionist commented: “She was paid by the USTR [US Trade Representative] to strike a good deal on behalf of US investors in Central America. And now she is taking the first case to exemplify how treaties like CAFTA favor those investors”116.Anna Joubin-Bret of US boutique Foley Hoag, spent 15 years with the United Nation Conference on Trade and Development (UNCTAD), advising developing countries on investment treaty issues. Joubin-Bret was the lead organiser of UNCTAD’s infamous mass signing parties where developing countries were lured into a room full of negotiators, leaving as signatories to dozens of investment treaties117. At Foley Hoag, Joubin-Bret now represents states in investor-state disputes and advises them in treaty drafting.Members of our team have unmatched knowledge and experience, often drawing from prior service in governments around the world.Sidley Austin about its arbitration practice118Keepers of the corporate flameIn 2001, journalist and author William Greider described NAFTA’s investment chapter as the result of industry’s long-term strategy to force governments to compensate whenever they regulate. Corporate lawyers, he suggested, were the “main transmission belt” for putting this idea into practice. “Their role, often underappreciated, is to act as the keepers of the flame, nurturing long-term policy objectives over many years and beyond the transient influence of elected politicians or corporate CEOs. They move in and out of government themselves, helping to write the official texts and laws they later use as tools on behalf of corporate clients when they return to private practice”119.Explorers have set out to discover a new territory for international arbitration. They have already landed on a few islands, and they have prepared maps s howing a vast continent below.Jan Paulsson of Freshfields, promoting investment arbitration in 1995120The investment lawyer’s toolboxBecome part of the club. Take your Blackberry and jet out to arbitration conferences. Subscribe to expensive list-serves. Become friends with other investment lawyers, arbitrators, funders and academics.Headhunt government officials. Their insider knowledge is invaluable and their contacts to ex-colleagues might come in handy.Know the arbitrators. Learn what they read, write, think, like, dislike. The better you know an arbitrator, the easier you will convince him/her and make them rule in your favour.Be the arbitrator. Even better! No one is as astute as the lawyer who regularly sits as an arbitrator.Create your own business. Look out for wars, economic crises and political change. Do your marketing.Convince your multinational clients that investment arbitration is a way to make money from such upheavals.Inflate your business. Get smart about treaty-shopping. Pursue parallel claims against states on the basis of the same facts. Put forward expansive, pro-investor interpretations of contested legal issues – to pave the way for even more disputes in the future.Scaremonger states. The threat of a multi-million dollar investor claim will make governments behave. With a contingency fee deal, you can cash in on the settlement.Be a mentor. Offer free capacity building to poor governments – all potential new clients. Maybe you can even advise them on treaty drafting.Lobby against investment treaty reform. Investment treaties are your cash cow. Fight against reform proposals which might make them less profitable.But protect the system! Investment treaty arbitration is in a crisis of legitimacy. You will have to swallow some minor reforms to keep it intact and lucrative. References chapter 3: 1. Markert, Lars (2012) “Investitionsrecht aus der anwaltlichen Praxis”, presentation at the International Investment Law Centre Cologne, 18 May; non-authorised translation: Pia Eberhardt. 2. Happ, Richard/ Bischoff, Jan Asmus (2011) Rechtsschutz bei Staatsbankrott?, Luther News, 16 August, pp. 1, 6.; translation: Pia Eberhardt. 3. UNCTAD (2011) Sovereign Debt Restructuring and International Investment Agreements, Issues Note No 2, July. 4. Peterson, Luke Erik (2008) Round-Up: Where things stand with Argentina and its many investment treaty arbitrations, Investment Arbitration Reporter, 17 December, http://www.iareporter.com/articles/20090929_15 [02-09-2012]. 5. In 2008, the average salary for a teacher in Argentina was Arg$ 2158 per month (http://www.cippec.org/Main.php?do=documentsDoDownload&id=468), and for a doctor it was Arg$ 4000 (http://www.semanaprofesional.com/?nota=22581 and http://www.semanaprofesional.com/?nota=13220). 6. Konrad, Sabine F./ Richman, Lisa M. (2011) Investment Treaty Protection for State Defaults on Sovereign Bonds – The Broader Implications of Abaclat et al. v. The Argentine Republic, K&L Gates Legal Insight, 17 October, p. 1, 4. 7. Heneghan, Patrick/ Perkams, Markus (2012) The clawback – can arbitration help Greek bondholders against redress?, LegalWeek.com, 11 May, http://www.legalweek.com/legal-week/analysis/2173647/clawback-arbitratio... [15/06/2010]. 8. Nolan, Michael D./ Sourgens, Frédéric G. (2011) The U.S. And EU Debt Crises in International Law – A Preliminary Review, Wall Street Lawyer 15:10; Leijten, Marnix/ van Geuns, Edward (2011) Griekenland moet wel terugbetalen, Het Financieele Dagblad, 23 September; Strik, Daniella (2012) Proposed Greek Collective Action Clauses Law May Trigger Its International Law Obligations, http://kluwer.practicesource.com/blog/2012/proposed-greek-collective-act... [11-07-2012]. 9. The American Lawyer (2012) Firm profiles. Milbank, Tweed, Hadley & McCloy, http://www.americanlawyer.com/firmProfile.jsp?name=Milbank%2C+Tweed%2C+H... [23-08-2012]. Based on an exchange rate of 1EUR = 1.295USD (31 December 2011). 10. German law firm Gröpper Köpke is representing a group of 500 German lenders, seeking around €100 million in damages. US-based firms Brown Rudnick and Bingham McCutchen have also been reported to have offered bondholders similar advice. See, Karadelis, Kyriaki (2012) Greece. A new Argentina?, Global Arbitration Review, 12 June, http://www.globalarbitrationreview.com/news/article/30603/greece-new-arg... [13-06-2012]. 11. The number of treaty cases was provided for Global Arbitration Review (GAR) by the law firms and has not been verified by GAR. They relate to investment arbitrations that were active in September 2011, source (unless otherwise indicated): http://www.globalarbitrationreview.com/gar100/. 12. Examples include Allen & Overy (UK), Baker & McKenzie (US), Baker Botts (US), Clifford Chance (US), Covington & Burling (US), de Brauw Blackstone Westbroek (NL), Dechert (US), Derains & Gharavi (F), Herbert Smith Freehills (UK), Lalive (CH), Mannheimer Swartling (SE), Milbank, Tweed, Hadley & McCloy (US), Skadden, Arps, Slate, Meagher & Flom (US), Squire Sanders (US), Volterra Fietta (UK), Weil, Gotshal & Manges (US), Wilmer Cutler Pickering Hale and Dorr (US) and Wolf Theiss (AT). 13. See endnote 11. 14. Unless otherwise indicated, figures in this column are taken from American Lawyer magazine (the Global 100, the Am Law 200, or the magazine’s profiles of individual firms). 15. Ibid. 16. Based on calculations by the authors, drawing from cases mentioned by American Lawyer magazine, on company websites, by Investment Arbitration Reporter (http://www.iareporter.com/) and on the Investment Treaty Arbitration portal (http://italaw.com/). 17. Chambers Associate (2012) Curtis, Mallet-Prevost, Colt & Mostle LLP, http://www.chambers-associate.com/Law/FirmFeature/3832 [23-10-2012]. 18. According to Amy Fantini Deschodt, media manager at Cleary Gottlieb, the firm was involved in more than 10 investor-state treaty cases in 2011. Email from Amy Fantini Deschodt to Corporate Europe Observatory, dated 28 August 2012. 19. According to Barry Appleton, managing partner of Appleton & Associates, the firm was involved in 10 or more investor-state treaty cases in 2011. Email from Barry Appleton to Corporate Europe Observatory, dated 21 August 2012. 20. Zeughauser Group (2012) ZGuide to leading law firms, p. 44. 21. Ibid. 22. Freshfields Bruckhaus Deringer (2010) Bilateral investment treaties. Managing the risk of government intervention, June, p. 2. 23. Markert, Lars (2012), see endnote 1. 24. Casley Gera, Ravinder (2009) The Globalisation of Arbitration, The Chambers Magazine, http://www.chambersmagazine.co.uk/Article/The-Globalisation-of-Arbitration [16-05-2012]. 25. Peterson, Luke Eric (2010) Investor and lawyers fall out over contincengy-fee arrangement in aftermath of ICSID arbitration, Investment Arbitration Reporter, 7 May, http://www.iareporter.com/articles/20100507_6 [15-06-2012]. 26. Global Arbitration Review (2012) Global Arbitration Review 100. The guide to specialist arbitration firms 2012, p. 3. 27. Ibid. 28. Casley Gera, Ravinder (2009), see endnote 24. 29. Global Arbitration Review (2009) Global Arbitration Review 100. The guide to specialist arbitration firms 2009, p. 2. 30. Gottwald, Eric (2007) Leveling the Playing Field: Is it Time for a Legal Assistance Center for Developing Nations in Investment Treaty Arbitration?, American University International Law Review 22:2, 237-275, pp. 252ff. 31. Bouc, Frantisek/ Aust Ondrej (2009) Česko našlo rcept na arbitráže, Lidove Noviny, 9 July. 32. Global Arbitration Review (2012), see endnote 26, p. 4. 33. K&L Gates (2012) International Arbitration. Why K&L Gates? Key distinguishing features of our arbitration practice, p. 1. 34. White & Case/ Queen Mary University of London International School of Arbitration (2010) 2010 International Arbitration Survey. Choices in International Arbitration, p. 27. 35. Global Arbitration Review (2012), see endnote 26, p. 4. 36. With 25 lawyers sitting as arbitrators Freshfields is the market leader, see: Global Arbitration Review (2012) Freshfields Bruckhaus Deringer, http://www.globalarbitrationreview.com/journal/article/30337/freshfields... [16-08-2012]. 37. Email communication with Nathalie Bernasconi-Osterwalder, senior lawyer at the International Institute on Sustainable Development (IISD), 24 August 2012. 38. Global Arbitration Review (2009), see endnote 29, p. 31. 39. King & Spalding (2011) Client Alert. Crisis in Libya: What Legal Options are Available to Oil and Gas Companies?, May. 40. Freshfields Bruckhaus Deringer (2011) Investments in Libya. Potential claims under Bilateral Investment Treaties and political risk insurance policies, March, p. 2. 41. King & Spalding (2011), see endnote 39. 42. See, for example: Clifford Chance (2001) Contracts with Libyan State agencies – implications of the current crisis, March; Annacker, Claudia/ Maydell, Niklas (2001) Libyen: Entschädigung für Investoren im Kriegsgebiet, Die Presse, http://diepresse.com/home/wirtschaft/recht/684109/Libyen_Entschaedigung-..., 8 August; Fulbright (2011) New Business Opportunities Expected, but Are Troubling Times Also Ahead for Investors in Libya?, September, http://www.fulbright.com/index.cfm?fuseaction=publications.detail&pub_id... [17-05-2012]. 43. Schreuer, C. H. (2011) The Protection of Investments in Armed Conflicts, advance publication, Transnational Dispute Management, June. 44. K&L Gates (2011) Arbitration Alert. International Arbitration against Hungarian Special Sales Tax, 17 January. 45. Poulton, Ed/ Davies, Richard (2011) Vattenfall v Germany: the nuclear option and investment arbitration, Commercial Dispute Resolution, 10 November, http://www.cdr-news.com/arbitration-and-adr/112-articles/1554-vattenfall... [19-05-2012]. 46. White & Case (2012) Indian Patent Office Grants Compulsory License for Bayer’s Nexavar. Implications for Multinational Drug Companies, April, http://www.whitecase.com/alerts-04022012/ [28-08-2012]. 47. Interview with Nathalie Bernasconi-Osterwalder, senior lawyer at the International Institute on Sustainable Development (IISD), 15 June 2012. 48. Markert, Lars (2012), see endnote 1. 49. See, for example, the reflection of General Electric’s in-house counsel Michael McIlwrath about a recent visit from a specialised arbitration firm advertising its services. McIlwrath felt treated as “fungible” and that General Electric’s interest in mediation (in contrast to arbitration) was ridiculised “as a cute personal hobby”; http://kluwerarbitrationblog.com/blog/2011/04/12/anti-arbitration-feedba... [28-08-2012]. 50. Interview with Nathalie Bernasconi-Osterwalder, see endnote 47. 51. Interview with Gus Van Harten, Associate Professor Osgoode Hall Law School, York University, Toronto, 30 November 2011. 52. Nolan, Michael/ Baldwin, Teddy (2012) Minimising Risk in the Face of Government Action, Project Finance International, 16 May, 47-49, p. 49, footnote 1. 53. Germany Trade & Invest (2011) Hilfe, ich werde enteignet! Abkommen schützen Auslandsinvestitionen. p. 5; translation: Pia Eberhardt. 54. Arbitration International (2008) Birth of an ICSID Case – Act I, Scene I, Arbitration International 24:1, 5-15, pp. 6ff. 55. Global Arbitration Review (2010) Global Arbitration Review 100. The guide to specialist arbitration firms 2010, p. 50. 56. Own calculations based on the cases against Argentina listed on the ICSID website on 23 February 2012, http://icsid.worldbank.org [23-02-2012]. 57. Goldhaber, Michael D. (2007) Houston, We Have an Arbitration, Focus Europe, 2-4, p. 3. 58. King & Spalding (2011) Annual Review 2011, p. 5. 59. Bishop, Doak R./ Dimitroff Sashe D./ Miles, Craig S. (2001) Strategic Options Available When Catastrophe Strikes the Major International Energy Project, Texas International Law Journal 36, 635-688, p. 636. 60. See the website http://chevrontoxico.com/. For Chevron’s version of the story, see http://www.theamazonpost.com/. 61. The Chevron Pit (2012) Maria Aguinda. The Grandmother Who Beat Chevron, http://thechevronpit.blogspot.de/2012/04/maria-aguinda-grandmother-who-b... [05-04-2012]. 62. Amazon Defense Coalition (2012) Chevron’s Arbitrator Suffers from Acute Ethical Problems, Ecuadorians Assert, http://chevrontoxico.com/news-and-multimedia/2012/0223-chevrons-arbitrat... [10-03-2012]. 63. Ross, Alison (2012) Tawil and Stern step away from tribunal, Global Arbitration Review, 23 February, http://www.globalarbitrationreview.com/news/article/30195/tawil-stern-st... [23-03-2012]. 64. King & Spalding (2011), see endnote 58, p. 13. 65. King & Spalding (2012) International Arbitration. Overview, http://www.kslaw.com/practices/International-Arbitration/Overview [22-02-2012]. 66. Global Arbitration Review (2010), see endnote 55, p. 50. 67. King & Spalding (2012) Guillermo Aguilar-Alvarez, http://www.kslaw.com/people/Guillermo-Aguilar-Alvarez [10-03-2012]. 68. King & Spalding (2012) International Arbitration, http://www.kslaw.com/practices/International-Arbitration/Matters [10-03-2012]. 69. Germany Trade & Invest (2011), see endnote 54, p. 9; translation: Pia Eberhardt. 70. Greider, William (2001) The Right and US Trade Law. Invalidating the 20th Century, The Nation, http://www.thenation.com/article/right-and-us-trade-law-invalidating-20t... [05-09-2012]. 71. Zachary Douglas of Matrix Chambers and the Graduate Institute in Geneva (at the time still at Cambridge University) identified this trend in a conference in Frankfurt, 1-3 December 2009. European Commission (2009) Mission Report. 50 years of Bilateral Investment Treaties Conference – Frankfurt 1-3 December 2009, p. 4. Obtained under the EU’s freedom to information regulation. 72. For a broad analysis of investment arbitration and governments abandoning legislation because of the threat of huge damage claims, see: Tienhaara, Kyla (2010) Regulatory chill and the threat of arbitration, in: C. Brown and K. Miles (eds) Evolution in Investment Treaty Law and Arbitration, 606-627. 73. Greider, William (2001), see endnote 70. 74. Goldhaber, Michael (2009) Playing 3-D Chess, The American Lawyer, 1 July, http://www.law.com/jsp/PubArticle.jsp?id=1202431685556 [10-05-2012]. 75. CME Czech Republic B.V. vs. The Czech Republic and Ronald S. Lauder vs. the Czech Republic (both UNCITRAL proceedings). 76. Gadelshina, Elvira R. (2011) Major Pitfalls for Foreign Investors in Russia. What Are Russion BITs Worth?, Kluwer Arbitration Blog, http://kluwerarbitrationblog.com/blog/2011/12/01/major-pitfalls-for-fore... [20-05-2012]. 77. Amsterdam, Robert (2008) The Resource Nationalism Checklist, http://corporateforeignpolicy.com/corporate-foreign-policy/the-resource-..., 17 April [16-05-2012]. 78. Tokios Tokelės vs. Ukraine (ICSID Case No. ARB/02/18). 79. SOMO (2011) Dutch Bilateral Investment Treaties: A gateway to ‘treaty shopping’ by multinational corporations for investment protection. 80. Geuze, Niels/ Rebergen, Mark (2012) Benefits of structuring foreign energy investments through the Netherlands, Oil&Gas Financial Journal, 1 February, http://www.ogfj.com/articles/print/volume-9/issue-2/department/capital-p... [16-05-2012]. 81. Baker & McKenzie (2011) How the Netherlands Bilateral Investment Treaty with China Offers Protection of your Chinese Investments, January. 82. Clifford Chance (2011) Australia says good-bye to neutral investor-state dispute resolution, June, p. 3. 83. Based on an exchange rate of 1EUR = 1.352USD (17 April 2009). 84. Bernasconi, Nathalie (2009) Background Paper on Vattenfall v. Germany Arbitration, IISD; Rechtsanwälte Günther (2012) Briefing Note. The Coal-fired Power Plant Hamburg-Moorburg, ICSID proceedings by Vattenfall under the Energy Charter Treaty and the result for environmental standards, 11 April. 85. Luther (2011), International Arbitration, p. 2. 86. Based on an exchange rate of 1EUR = 1.244USD (31 May 2012). 87. PowerShift (2012) Der deutsche Atomausstieg auf dem Prüfstand eines internationalen Investitionsschiedsgerichts? Hintergründe zum neuen Streitfall Vattenfall gegen Deutschland (II), October. 88. Global Arbitration Review (2012), see endnote 26, p. 78. 89. Global Arbitration Review (2011) Global Arbitration Review 100. Mannheimer Swartling, http://www.globalarbitrationreview.com/journal/article/29175/mannheimer-... [08-11-2012]. 90. Global Arbitration Review (2012), see endnote 26, p. 78. 91. Mannheimer Swartling (2012) Dispute Resolution – Investment Treaty Arbitration, http://www.mannheimerswartling.se/en/Activity/Activity-groups/Litigation... [14-05-2012]. 92. Global Arbitration Review (2011), see endnote 89. 93. Mannheimer Swartling (2012) News. Kaj Hobér appointed Professor of International Investment and Trade Law at Uppsala University, 28 March, http://www.mannheimerswartling.se/en/News/Latest-news/Kaj-Hober-appointe... [14-05-2012]. 94. Global Arbitration Review (2012) GAR 100 – 5th edition, http://www.globalarbitrationreview.com/surveys/survey/628/GAR-100/ [14-05-2012]. 95. Luther (2012) Luther – die Unternehmeranwälte, http://www.luther-lawfirm.com/ueberuns.php?r=1 [15-05-2012]; translation: Pia Eberhardt. 96. Luther (2011), see endnote 85, p. 10. 97. Konrad, Sabine (2012) Investment Protection at Risk, K&L Gates (2012) K&L Gates Global Government Solutions 2012. Annual Outlook, 21-22. 98. Juve (2012) Ausbau. K&L Gates verstärkt Schiedsverfahrens- und Arbeitsrecht, http://www.juve.de/nachrichten/namenundnachrichten/2012/01/ausbau-kl-gat... [14-05-2012]. 99. Van Harten, Gus (2012) Pro-Investor or Pro-State Bias in Investment-Treaty Arbitration? Forthcoming Study Gives Cause for Concern, Investment Treaty News, 13 April, http://www.iisd.org/itn/2012/04/13/pro-investor-or-pro-state-bias-in-inv... [18-06-2012]. 100. Markert, Lars (2012), see endnote 1. 101. Lalive/UNITAR (2012) Introduction to Investment Arbitration (2012), http://www.unitar.org/event/laliveunitar-introduction-investment-arbitra... [04-09-2012]. 102. See the website of Africa International Legal Awareness (AILA), http://www.aila.org.uk/. 103. Hogan Lovells (2011) Investment Protection and Arbitration, p. 8. 104. See, for example, ACCI (2012) Australian Foreign Investment Requires Right to Sue Foreign Governments, 9 August, http://acci.asn.au/Research-and-Publications/Media-Centre/Media-Releases... [04-09-2012]. 105. For the following section and more information about the corporate lobby battle against investment treaty reform in the EU, see: Corporate Europe Observatory (2011) Investment rights stifle democracy, 31 March. 106. Interview with international investment law researcher who asked to remain anonymous, 1 June 2012. 107. Gaillard, Emmanuel (2011) Menaces sur la protection des investissements en Europe, Option Droit et Affaires, May 11, p. 8. 108. van Geuns, Edward/ Jansen, Nani (2011) Protecting investments post-Lisbon Treaty, Global Arbitration Review 6:1, 1-2; Konrad, Sabine (2012), see endnote 97. 109. Based on an exchange rate of 1EUR = 1.429USD (1 October 2008). 110. Hall, David (2010) Challenges to Slovakia and Poland health policy decisions: use of investment treaties to claim compensation for reversal of privation/liberalisation policies, January. 111. The Metropolitan Corporate Counsel (2012) Protecting Your Company’s Global Interests Using Treaty-Based International Arbitration, http://www.metrocorpcounsel.com/articles/19649/protecting-your-company%E... [05-07-2012]. 112. Paulsson, Jan (1995) Arbitration Without Privity, Foreign Investment Law Journal 10:2, 232-257, p. 232. 113. Peterson, Luke (2012) As United States is hit with another arbitration claim, pharma companies are growing creative in their use of investment treaties, IA Reporter, 13 March, http://www.iareporter.com/articles/20120314 [05-09-2012]. 114. Greenberg Traurig: People. Regina K. Vargo, http://www.gtlaw.com/People/ReginaKVargo [17-05-2012]. 115. Global Arbitration Review (2009), see endnote 29, p. 25. 116. Wallach, Jason (2007) Ex-USTR Negotiator Vargo Key in CAFTA Case, 28 March, http://upsidedownworld.org/main/news-briefs-archives-68/678-ex-ustr-nego... [17-05-2012]. 117. See, for example, UNCTAD (2003) Round of Negotiations of Bilateral Investment Treaties for English-Speaking African Least Developed Countries. Final report. 118. Sidley Austin (2012) Our Practice. International Arbitration (Commercial and Treaty), http://www.sidley.com/internationalarbitration/ [22-08-2012]. 119. Greider, William (2001), see endnote 70. 120. Paulsson, Jan (1995), see endnote 112, p. 232.
 

A deregulation agenda is sweeping through the Commission & member states, particularly pushed by the UK.

The recent leak of many parts of TTIP, allowing us for the first time to read the negotiating position of the US, confirms our most serious concerns.

Dangerous attacks against regulations protecting public interest wouldn't be prevented by 'new' proposals.

Despite growing concerns among the European public, the new EU proposal on regulatory cooperation in TTIP does nothing to address the upcoming democratic threats.

A few weeks after the May coup against Dilma Rousseff by conservative parties backed by the country's largest corporations, Brazil's “interim” government, led by Michel Temer, signed an emergency loan to the State of Rio de Janeiro to help finance infrastructure for the 2016 Olympics. The bailout was conditional to selling off the State's public water supply and sanitation company, the Companhia Estadual de Águas e Esgotos (Cedae). 

When we interviewed City Councillor and chair of Rio’s Special Committee on the Water Crisis Renato Cinco, in December 2015, he was already warning against such privatisation threats and provided important background information on the water situation in Rio.

Corporate Europe Observatory's new report 'A spoonful of sugar' illustrates how the sugar lobby undermines existing laws and fights off much-needed measures that are vital for tackling Europe’s looming obesity crisis.

José Manuel Barroso's move to Goldman Sachs has catapulted the EU’s revolving door problem onto the political agenda. It is symbolic of the excessive corporate influence at the highest levels of the EU.

Corporate Europe Observatory, Friends of the Earth and LobbyControl today wrote to Martin Schulz, President of the European Parliament, calling on him to investigate Angelika Nieber MEP over a possible conflict of interest.

 
 
 
 
 
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The corporate lobby tour