Munia El Harti Alonso, Of Counsel at Robalino
This post highlights the Third Edition of the Washington Arbitration Week 2022 (“WAW 2022”), providing a recap of the event. WAW 2022 held 19 sessions for the first time in an in-person format and online (hybrid) and 2 solely virtual sessions, for a total of 21 sessions.
Washington DC as the Epicenter of Investor-State Arbitration
Since its inaugural edition in 2020, the Washington Arbitration Week (“WAW”), founded by Jose Antonio Rivas and Ian Laird, has had a total of 32 panels with 152 speakers and 3,382 attendees, becoming a referenced forum for the discussion of the latest developments in arbitration. For a recap of its sister global event, see Jus Mundi’s coverage of the World Arbitration Update.
Placed in Washington, the conference is at the epicenter of investor-state disputes, strengthened by the establishment of the World Bank International Centre for Settlement of Investment Disputes headquartered in DC. Washington DC has also secured a prime place for enforcements of ICSID awards and non-ICSID awards, capitalizing on the experience of the legal community with governmental matters.
Cross Pollination of Topics and Diversity
The record 21 panels are archived in a videotheque, with subtitled videos referenced in the links of the panels in this report.
The panels showcased diversity in conceptual – with diverse topics – and concrete terms as promoted by initiatives such as the Equal Representation in Arbitration Pledge. The WAW carved space for the youngest generation of lawyers via two panels: the New and Young Arbitration Practitioners practical session, with a practice panel on how to draft the damages section of a memorial and work with damages expert New as well as the Young Arbitration Practitioners on Drafting of the Facts, Use of Evidence and the Narrative of the Case. Arbitral Women, the international network of women in arbitration, held a panel showcasing Women and Arbitration, whilst mental wellbeing in the legal profession encapsulated in the latest IBA study was tabled in a panel entitled “Riding the Arbitration Bicycle: The Importance of Achieving Balance in Your Arbitration Career”.
Systemic issues in international arbitration kicked off with an inaugural speech on the Status of the draft Code of Conduct for Adjudicators (See, Version 5 of the Draft Conduct with commentary) in International Investment Disputes developed by ICSID and UNCITRAL by Professor Chiara Giorgetti (Richmond Law School) and keynote address by Meg Kinnear (ICSID Secretary General). The ISDS reform was delved on critically with the discussions on ISDS Developments with a round table talk on “2022 Central Topics of UNCITRAL Group III”, pertinently posing the question on whether the means to pragmatically move forward an ISDS reform–by providing the option to support certain international investment instruments and not others—create a problem of fragmentation that will prevent creating a consistent and balanced new ISDS system. A prospective and retrospective view of the reform was also touched upon in the panel “History and Future of ICSID: Where It Came From, and Where it Might Go”, focusing inter alia on the key differences between the 2006 and 2022 version of the rules. Cross pollination of topics and segments of international law transpired, as speakers discussed the intersection of the “Influence of Public International Law in Investment Arbitration”, concluding that the investor-State dispute settlement (ISDS) is undeniably a part of the public international law regime.
Important trends such as the establishment of ESG, “given firms’ and clients’ increased focus” in the latter were made evident in the conversation that gave an overview on “Arbitration and Infrastructure, Energy and Construction Projects in the Midst of Climate Change” which focused on emerging markets and the intricate issue of causation in valuation models. Another new development was unveiled in the “Deep Sea Bed Mining” discussion that had a comprehensive focus on jurisdiction merits and quantum, pushing the limits of national jurisdiction on the deep-sea bed “Area” defined under the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”).
Concluding, WAW’s 3rd edition delivered on its premise to analyse and discuss the developments reflected in arbitral awards, treaties and international instruments at the forefront of international arbitration from a sensible empirical perspective.
ABOUT THE AUTHOR:
Munia El Harti Alonso is an Of Counsel at Robalino, a top tier law firm in Ecuador, representing clients in investment and commercial international arbitration and complex cross border disputes, particularly in the oil and gas and mining sector. She is admitted to the New York Bar and is a Young ICCA Representative for Latin America.
 See the end of the circuit split on enforcement of awards between the “creditor friendly” New York courts approach via summary ex-parte proceedings and the DC Circuit in ConocoPhillips Petrozuata B.V. v. Bolivarian Republic of Venezuela, No. 1:19-cv-683, 2022 WL 3576193 (D.D.C. Aug. 19, 2022).