THE AUTHOR: Zeyad Abouellail, Legal Content Officer at Jus Mundi
The World Arbitration Update (WAU) addresses key and novel topics of investment and international commercial arbitration, as well as public international law. WAU has an objective to connect the different regions with the global community, creating a unique space for practitioners, private parties, arbitrators, academics and students to discuss and network. WAU nourishes the conversation by following a distinct format, in a decentralized forum in which each day the focus is on a specific region, starting with the Americas (Monday), Africa and MENA (Tuesday), Asia Oceania (Wednesday), Europe (covered in this post), and lastly Friday was dedicated to diverse topics.
As part of the 2022 World Arbitration Update, a panel discussion was held on “Investment Arbitration and Journalism“, an increasingly relevant topic as mainstream media coverage of investment arbitration cases continues to grow.
The panel was moderated by Mallory Silberman (Partner at Arnold & Porter) and featured Caroline Simson (Senior reporter for Law360’s international arbitration newswire), Jean-Rémi de Maistre (CEO & Co-Founder of Jus Mundi), and José Antonio Rivas (Xtrategy Partner and Co-founder of World Arbitration Update and Washington Arbitration Week).
When Does a Case Get Mainstream Coverage?
The panel agreed that it is very difficult to predict when a case will get coverage by mainstream news outlets. Jean-Rémi de Maistre explained that the highly technical character of investment arbitration may sometimes play a role in dissuading general news outlets from reporting on cases. For instance, Mr. de Maistre noted that the Severgroup and K.N. Holdings v. France arbitration (PCA Case No. 2022-13) didn’t gather as much mainstream attention as expected, partially because non-specialized journalists could not easily navigate the details of the case.
Caroline Simson gave the example of the Rockhopper v. Italy case (ICSID Case No. ARB/17/14) which didn’t get the coverage it might have warranted from international media. The case, which was closely watched by NGOs, could influence the debate on the future of investment arbitration. Even though the outcome of the case is public, the award itself is not, which might have been a reason for this lack of coverage. This touches on the importance of transparency in media coverage of investment arbitration, a point that was emphasized by all the speakers.
Challenges of Reporting on Investment Arbitration
Reporting on investment arbitration cases can pose many challenges for non-specialized journalists. Caroline Simson noted that it’s important that reporters have knowledge of the subject matter because of the particularities of terms and concepts employed by tribunals in arbitral awards. Familiarity with the subject matter also helps when translating and navigating information in different languages.
Jean-Rémi de Maistre also touched upon the international and multilingual nature of investment arbitration and emphasized that this can pose a challenge to reporting on cases. In addition, post-award proceedings such as the enforcement of awards tend to occur in multiple jurisdictions. In this respect, a strong and transparent information system is needed to ensure equal access to information.
José Antonio Rivas underscored the importance of the ability to simplify complex matters. Accuracy in the language used to describe the outcome of cases is essential. Mr. Rivas offered examples where in mainstream media in Latin America, terms such as “the State was spared from paying” were employed, implying that the State was close to losing the arbitration, when in fact it had a favorable position in the case. Even if a general news outlet is not a specialized legal outlet, Mr. Rivas argues that some elements should still be covered.
Mallory Silberman followed up by explaining that an implicit difficulty of reporting on investment arbitration cases is imposed by the medium of communication. Since there are complications in reducing complex issues in writing in an effective and exact manner, assessing new mediums of communication, such as documentaries, may be interesting.
The speakers discussed certain particularities of coverage of pending investment arbitration proceedings. Such coverage can eventually harm the confidentiality of proceedings and can possibly tempt parties to use media coverage to sway public opinion in their favor.
The Role of Transparency in Guaranteeing Neutral Coverage of Cases
Media coverage of investment arbitration and transparency are intrinsically linked. The panel discussed transparency regarding the accessibility of information on investment arbitration cases. Contrary to what some may think, transparency will not systematically lead to more criticism of the ISDS regime but more neutral and transparent coverage to the public.
José Antonio Rivas highlighted the importance of transparency from the different stakeholders. As reporters are usually given information by parties, both the winning and losing parties need to be accurate on the outcome of the arbitration and what has happened throughout. Additionally, reporters need to deliver the information to the public in an unbiased manner. Caroline Simson noted there are news stories about investment arbitration that are written with a clear ISDS bias.
As the panelists discussed how confidentiality can be a barrier to transparency, Mallory Silberman emphasized that it is important to not forget that both lawyers and journalists have ethical and professional obligations.
What Role Does the Investment Arbitration Community Have to Play?
The panel agreed that the investment arbitration community has an important role to play in ensuring accurate and objective reporting of cases in mainstream media by educating journalists and the public and providing more information about how cases function.
Discussing communication between the arbitration community and the press, José Antonio Rivas noted that greater commitment by the arbitration community is needed to explain the outcome of cases through a simplified approach.
Jean-Rémi de Maistre emphasized that the arbitration community has an important role in democratizing investment arbitration and more generally international law. There exists a shared responsibility to promote the global rule of law and in building the bridge between “generalists” – mainstream journalists – and specialist arbitration practitioners.
Caroline Simson stressed that if the investment arbitration community wants to protect the system, it must act transparently and provide information to the public.
In conclusion, there are undoubtedly many challenges for non-specialized journalists to cover investment arbitration cases, which may occasionally lead to inaccurate reporting. However, as mainstream media coverage of investment arbitration continues to grow, the arbitration community must question the role it has to play in educating and communicating with journalists to guarantee neutral and objective coverage of cases. This will in turn lead to a fair debate on the future of the ISDS regime.
ABOUT THE AUTHOR
Zeyad Abouellail is a Legal Content Officer at Jus Mundi and a PhD candidate at Paris-Saclay University. His research focuses on the post-award phase in investment arbitration. He holds two Master’s Degrees in International Business Law from Paris-Saclay University and Paris 1 Panthéon-Sorbonne University. Prior to joining Jus Mundi, Zeyad has interned at several law firms in international arbitration and corporate law in Cairo, Egypt.