Innovative Strategies for Conflict Management: Improving Investor-State Relations to Propel Global Growth

The 2020 St. Thomas Law Journal Editor-in-Chief Lecture. Space is limited.

Date & Time:

Friday, February 21, 2020
8:30 AM - 4:00 PM

Location:

University of St. Thomas School of Law
1101 Harmon Place, Minneapolis
Interactive Map and Driving Directions

Running a business is inherently risky, and the level of risk increases exponentially when investing across borders. Yet investors leave the comfort of their countries looking for resources or opportunities they cannot find domestically.

When investing abroad, those in the private sector not only face the difficulties of doing business in an alien and unfamiliar regulatory environment, but they also confront risks and uncertainties regarding the actions of governments and political institutions, as well as social groups and separatist movements. Recent research shows at least one fourth of investors in developing countries discontinue their investment projects long before they consider invoking any form of dispute resolution because of the political risks derived from government conduct.

Effective investor-state conflict management mechanisms can enable investors to mitigate the political risks derived from government conduct. In this way, both governments and investors can work together to begin forging and maintaining mutually beneficial business relationships. Only once the relationship between the investor and the state is strengthened, can the global economy attain higher levels of growth.

Within this context, this one-day, interactive workshop will: (1) bring together global experts and business leaders to discuss current challenges and opportunities affecting foreign direct investment (FDI); (2) discuss the latest empirical data and innovative approaches implemented at the World Bank to retain and expand foreign investment; and (3) engage foreign investors in an interactive conversation about the practical implications and impacts of the options discussed for the way forward.

Keynote Speakers:

  • Meg Kinnear, Vice President of the World Bank Group (WBG) and Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID)
  • Roberto Echandi, Lead Private Sector Specialist in the Trade Unit of the Macroeconomics, Trade and Investment Global Practice of the World Bank Group (WBG)

Schedule:

8:30–9 a.m. Continental Breakfast and Registration
9–9:15 a.m. Opening Remarks
9:15–9:45 a.m. Keynote Speaker: Meg Kinnear (World Bank), Current Developments in International Investor-State Dispute Resolution: Challenges and the Way Forward
9:45–10:30 a.m. Keynote Speaker: Roberto Echandi (World Bank), Investors' Perspectives on the Impact of Irregular Government Conduct: Recent Empirical Evidence & Introduction to Investor-State Conflict Management Mechanisms
10:30–10:45 a.m. Q & A
10:45–11 a.m. Coffee Break
11 a.m.–12 p.m.

Panel Discussion: Investor-State Conflict Management: Implementation and Perspectives from Stakeholders

Panelists will include Mariana Hernandez-Crespo Gonstead (St. Thomas Law, IDRRN and ICSID), Reagan Demas (Baker McKenzie), Laura Dachner (Merck & Co., Inc.) and Dongwook Chun (WBG)

12–1:30 p.m. Lunch
12:30–1:30 p.m.

Panel Discussion: From Where We Are to Where We Are Heading: Alternative Means to Investor-State Dispute Settlement (ISDS)

Panelists will include Susan Franck, Karl Sauvant (Columbia University) and Katia Yannaca-Small (Arbitration Expert)

1:30–1:45 p.m. Coffee Break
1:45–2:45 p.m.

Panel Discussion: What are International Organizations doing on Investor-State Conflict Management?

Panelists will include Frauke Nitschke (ICSID), Alejandro Carballo-Leyda (International Energy Charter) and Judith Knieper (UNCITRAL)

2:45–3:15 p.m.

Conclusion Round Table: The Way Forward

Meg Kinnear (ICSID) Mariana Hernandez-Crespo Gonstead (St. Thomas Law) and Roberto Echandi (World Bank)

3:15-3:45 p.m.

Wine and Cheese Reception

This event is presented by the University of St. Thomas Law Journal in collaboration with the International Dispute Resolution Research Network (IDRRN).

 

Speaker Bios:

Meg Kinnear

Meg Kinnear is a Vice President of the World Bank Group (WBG) and Secretary-General of the International Centre for Settlement of Investment Disputes (ICSID). As Secretary-General, she oversees a staff of 70 people, administering more than 300 investment arbitrations each year.

Ms. Kinnear was formerly the Senior General Counsel and Director General of the Trade Law Bureau of Canada. In November 2002, Ms. Kinnear was also named Chair of the Negotiating Group on Dispute Settlement for the Free Trade of the Americas Agreement. From October 1996 to April 1999, Ms. Kinnear was Executive Assistant to the Deputy Minister of Justice of Canada.  Prior to this, Ms. Kinnear was Counsel at the Civil Litigation Section of the Canadian Department of Justice (from June 1984 to October 1996).

Ms. Kinnear is called to the Bar of Ontario (1984) and the Bar of the District of Columbia (1982).  She received a Bachelor of Arts (B.A.) from Queen’s University in 1978; a Bachelor of Laws (LL.B.) from McGill University in 1981; and a Master of Laws (LL.M.) from the University of Virginia in 1982.  

Ms. Kinnear is currently Editor-in-Chief of the ICSID Review, has published numerous articles on international investment law and procedure, and is a frequent speaker on these topics.  She is also a co-author of Investment Disputes under NAFTA (published in 2006 and updated in 2008 & 2009), Federal Court Practice (1988-1990, 1991-1992, and 1993-2009 annually) and 1995 Crown Liability and Proceedings Act Annotated (1994).

Roberto Echandi

Roberto Echandi is a Lead Private Sector Specialist in the Trade Unit of the Macroeconomics, Trade and Investment Global Practice of the World Bank Group (WBG). From this position, his current work program focuses on research and policy advice on issues related to cross border trade in services, negotiation, implementation and maximization of potential benefits of Deep Integration Trade Agreements and the AfCFTA negotiation and implementation process. Prior to joining the WBG trade unit, he was the Global Lead for Investment Policy and Promotion of the Trade and Competitiveness Global Practice.

Prior to joining the WBG, he was Director of the Program on International Investment at the World Trade Institute (WTI) of the University of Bern. Echandi is also a member of the Faculty of the Masters in International Law and Economics (MILE) at the WTI and a member of the Editorial Board of the Journal of World Investment and Trade (JWIT). He has also recently been Faculty of the Masters in International Economic Law (IELPO) at the University of Barcelona and member of the Editorial Board of the Journal of International Economic Law (JIEL).

Roberto was Costa Rica’s Ambassador to Belgium, Luxembourg and the European Union from 2007 to 2010. During the same period, he was also Chief Negotiator for the Association Agreement negotiations between the EU and Central America, where he led the negotiation process on behalf of Costa Rica and in many occasions for the whole Central American region. From October 2002 until January 2005, he served as Special Adjunct Ambassador for U.S. Trade Affairs and lead negotiator in services and investment in the US-Central America Free Trade Agreement (CAFTA). He also was Adjunct Professor at the Georgetown University Law Center and served as Legal Affairs Officer of the WTO Appellate Body Secretariat.  For more than 15 years, Roberto led Costa Rican delegations to multiple trade and investment bilateral and regional negotiations and was been heavily involved in domestic policy reforms to ensure implementation of international trade and investment agreements in Costa Rica. Roberto Echandi undertook his doctoral and LL.M. studies in International Trade Law at the University of Michigan School of Law at Ann Arbor, Michigan; his M.Phil. in Latin American studies with emphasis in economic integration at the University of Oxford; Licenciado en Derecho, at the University of Costa Rica and specialized negotiation courses at the Kennedy School of Government at Harvard University.

He has published more than 40 international contributions on the legal and political economy dimensions of investment issues, dispute settlement, trade in services and regional economic integration in the Americas. He has served as a consultant to the OECD, the WBG, UNCTAD, the Organization of American States, the Inter-American Development Bank and the WTO.

Mariana Hernandez-Crespo Gonstead

Deputy to the Dean for International Legal Studies, Executive Director of the IDRRN, and a Professor of Law at St. Thomas School of Law in Minnesota. She holds a Juris Doctor (J.D.) and a Masters of Law (LL.M.) from Harvard Law School and another law degree from UCAB.

Professor Gonstead’s broad international experience includes: leading national consensus building in Brazil, working with the Trust of the Americas (OAS), teaching at the WTI in Switzerland, developing capacity for the EPA between Mongolia and Japan, and participating as an expert at UNCTAD and the World Bank. Additionally, she was appointed by the President of the World Bank to serve on the ICSID Panel of Arbitrators and of Conciliators, as one of ten globally-selected mediators.

She has co-chaired the ABA Dispute Resolution Section Law Schools Committee and has publications in English, Spanish, and Portuguese. She recently co-authored a book, “Global Issues in Mediation,” that is part West’s Global Issues Series.

Frauke Nitschke

Frauke Nitschke is a senior counsel at the International Centre for Settlement of Investment Disputes (ICSID). Frauke is leading ICSID’s activities in the area of investor-State mediation, including the drafting of the proposed Mediation Rules and the amendments to ICSID’s Conciliation Rules. She is the team lead for ICSID staff handling proceedings in English. Frauke also serves as Secretary of tribunals, conciliation commissions and ad hoc committees in investor-State proceedings conducted pursuant to the ICSID Convention and the ICSID Additional Facility Rules involving a variety of economic activities and legal instruments. Prior to joining ICSID, Frauke served in the World Bank’s Legal Vice Presidency and the Inspection Panel. Frauke is an accredited mediator and admitted to the D.C. and New York State Bar. She holds a law degree from Freie Universität Berlin, an LLM from Georgetown University Law Center, and a Master’s Degree in Psychology from FernUniversität Hagen.

Dr. Dongwook Chun

Dr. Dongwook Chun is a Senior Private Sector Specialist in the Investment Climate unit in the World Bank Group (WBG). He is currently working as the Investment retention/expansion workstream leader. Before joining the WBG, he had been working for the Korean Government in the Ministry of Trade, Industry, and Energy (MOTIE) from 2003. He was a Manager for WTO dispute settlement and represented Korean government in the WTO tribunal. He also has diverse experiences in industrial and sectoral development policies such as semiconductor, electronic components, and energy industries. Dr. Chun received the Doctor of the Science of Law (J.S.D.) and Master of Law (LL.M.) from Cornell Law School and majored electrical engineering in Seoul National University. He is an active member of Bar in the state of California and District of Colombia.

Reagan Demas

Reagan Demas has significant experience working on behalf of companies and investors in emerging markets and high-risk jurisdictions.  He helps companies effectively and efficiently identify and address legal compliance risk, with a focus on global supply chain compliance, anti-corruption, fraud, business ethics, human rights and corporate compliance.  He provides practical solutions on issues of trade, taxation, investment, entity registration, security and expatriate employment.  Mr. Demas has also conducted investigations, risk assessments and due diligence in a variety of legal compliance matters for companies across industries, and has worked on the ground evaluating partnerships, investments and other business opportunities worldwide.  He is a leading thinker in the area of business ethics and human rights-related legal obligations and emerging regulatory regimes, and has written and spoken extensively on emerging compliance trends, ethics, corruption and doing business in emerging markets.

Mr. Demas has also managed major legal compliance investigations for a variety of Fortune 500 companies and negotiated settlements before the US Department of Justice, US Securities and Exchange Commission, and other federal and state regulatory entities, obtaining declinations in a number of matters.

Judith Knieper

Judith Knieper is a legal officer at the Secretariat of the United Nations Commission on International Trade Law (UNCITRAL) in Vienna. Until her appointment to the secretariat, she had been working in South East Europe from 1998 -2013 for numerous donors/organizations, e.g. OSCE, CoE, Worldbank and GIZ, the Deutsche Gesellschaft für Internationale Zusammenarbeit, the German international cooperation. She conducted two regional projects in the area of CISG and Alternative Dispute Resolution for GIZ.

She obtained both Legal State Exams in Frankfurt, Germany as well as her Ph.D. and is also qualified and certified as a Mediator.

Alejandro Carballo-Leyda

Alejandro Carballo-Leyda (LLB with Economics, LL.M., Ph.D. in international law, CEDR accredited mediator) is the General Counsel of the International Energy Charter and head of its Conflict Resolution Centre, which provides good offices and mediation support to investors and governments.

He also supports the discussion on modernisation of the Energy Charter Treaty (ECT) and several countries in developing their internal instrument on preventing and managing investment disputes. Alejandro teaches international investment law at University Paris 1 Panthéon-Sorbonne.

Previously, Alejandro advised states and private clients on a wide range of public and private international law issues. He participated in the working groups of UNIDROIT Principles of International Commercial Contracts (2010 ed.) and the Hague Conference Principles on Choice of Law in international contracts.

Katia Yannaca-Small

Katia Yannaca-Small is an independent counsel and arbitrator and an Adjunct Professor at the University of Southern California Gould School of Law, teaching International Investment Law and Arbitration.  Previously, she was Counsel with the International Arbitration and Public International Law Groups of Shearman and Sterling LLP in Washington DC. Prior to joining the private sector, she was the Senior Legal Advisor on International Investment with the Organization for Economic Co-operation and Development (OECD) in Paris, in charge of all the OECD work on international investment agreements and arbitration. The results of this work have been used as a reference by governments and included in several OECD publications. Katia Yannaca-Small also served as Senior Counsel with ICSID, where she administered large investor-state arbitrations, and proposed and developed the first ICSID's course on ICSID procedure for government officials and practitioners. She is a frequent speaker and has written extensively in the field of investment arbitration and edited and authored several chapters of the one of the main treatises in the field "Arbitration under International Investment Agreements: A Guide to the Key Issues" published by Oxford University Press (Second Edition, 2018).

Laura Dachner

Laura joined Merck & Co last year bringing more than 20 years of experience working at the multilateral, regional and national levels in policy, legislative and regulatory affairs related to a number of industries, including healthcare, with a focus on international trade and foreign investment. As part of her responsibilities in her current role, she advocates for policies and legislation affecting the biopharmaceutical sector’s competitiveness, investment and innovation in Latin America.

Prior to joining Merck, Laura spent over three years as a senior consultant at the World Bank Group where she successfully led her team’s operational projects in the Latin America region related to investment policy and promotion and gained first-hand understanding of the key role that multilateral organizations can play in bringing governments and the private sector together.  Among other positions, she was also Deputy Chief of Mission and Minister Counselor for Economic and Commercial Affairs of the Embassy of Costa Rica in Washington, DC, Counselor at the Costa Rican Permanent Mission to the World Trade Organization, and consultant on competition policy for the UK Department for International Development.

Laura has a Law Degree from the University of Costa Rica and a Master’s in Regulation with an emphasis in utilities from the London School of Economics and Political Science.

Karl P. Sauvant, Ph.D.

Karl P. Sauvant, Ph.D., is Lecturer-in-Law at Columbia Law School; Resident Senior Fellow at the Columbia Center on Sustainable Investment (CCSI), a joint center of Columbia Law School and the Earth Institute at Columbia University; Guest Professor at Nankai University, China; and former Theme Leader of the International Centre for Trade and Sustainable Development/World Economic Forum Task Force on Investment Policy. Prior to that, until February 2012, Dr. Sauvant was the Founding Executive Director of the Vale Columbia Center on Sustainable International Investment, the predecessor of CCSI. Until July 2005, Dr. Sauvant was Director of the United Nations Conference on Trade and Development's (UNCTAD’s) Investment Division, the focal point in the UN system for matters related to foreign direct investment, as well as a major interface with the private sector. While at the UN, he created, in 1991, the prestigious annual World Investment Report, of which he was the lead author and head of the team preparing the report until 2004. He is the author of, or responsible for, a substantial number of publications on issues related to economic development, FDI and services (see: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2461782 and http://www.works.bepress.com/karl_sauvant/). In 2011, he was elected Fellow of the Academy of International Business; in 2006, he was elected an Honorary Fellow of the European International Business Academy. He received his Ph.D. from the University of Pennsylvania in 1975.

Andrea Kupfer Schneider

Andrea Schneider is a professor of law and has taught Dispute Resolution, Negotiation, Ethics, and International Conflict Resolution for over 20 years. She is the inaugural director of the Institute for Women’s Leadership at Marquette University and also the director of the law school’s nationally ranked dispute resolution program. She frequently publishes law review articles and book chapters on negotiation, gender, and international conflict and has co-authored several leading legal textbooks on ADR, Negotiation, Mediation and Plea Bargaining. Andrea is a founding editor of Indisputably, the blog for ADR law faculty and started the Dispute Resolution Works-in-Progress Annual Conference in 2007. She was named 2009 Woman of the Year by the Wisconsin Law Journal and, in 2016, gave her first TEDx talk entitled Women Don’t Negotiate and Other Similar Nonsense. She was named the 2017 recipient of the ABA Section of Dispute Resolution Award for Outstanding Scholarly Work.

Nancy A. Welsh

Nancy A. Welsh is Professor of Law and Director of the Dispute Resolution Program of Texas A&M University School of Law. She was previously the William Trickett Faculty Scholar and Professor of Law at Penn State University, Dickinson School of Law. Professor Welsh is a leading scholar and teacher of dispute resolution and procedural law. She examines negotiation, mediation, arbitration, judicial settlement, and dispute resolution in U.S. and international contexts, focusing on self-determination, procedural justice, due process, and institutionalization dynamics. Professor Welsh presents nationally and internationally and has written more than 60 articles and chapters that have appeared in law reviews, professional publications and books. Professor Welsh is also co-author of the fourth, fifth and sixth editions of DISPUTE RESOLUTION AND LAWYERS. She succeeded Harvard Law Professor Frank Sander as co-chair of the Editorial Board of the Dispute Resolution Magazine, conducted research as a Fulbright Scholar in the Netherlands, and served as Chair of both the ABA Section of Dispute Resolution and the AALS Alternative Dispute Resolution Section. Before joining the legal academy, Professor Welsh was the executive director of Mediation Center in Minnesota and practiced law with Leonard, Street and Deinard. She has advised state legislatures, federal and state agencies, and courts regarding the institutionalization of dispute resolution, conducted empirical research, convened roundtables and symposia on various dispute resolution topics, and served as a mediator, facilitator and arbitrator. Professor Welsh earned her B.A. magna cum laude from Allegheny College and her J.D. from Harvard Law School.

Susan Franck, American University, Washington College of Law

Professor Susan Franck is an expert in the fields of international investment law, empirical analysis, and dispute settlement. Professor Franck's legal experience includes serving at the United Nations Conference on Trade and Development (UNCTAD) and practicing in international dispute settlement with Wilmer, Cutler & Pickering [now Wilmer Hale] in Washington, DC and Allen & Overy in London, England. In addition to her 2019 Oxford University Press book, Arbitration Costs: Myths and Realities of Investment Treaty Arbitration (2019), she has over forty publications in journals including Duke Law Journal, Washington University Law Review, and Harvard International Law Journals. Having made over 130 presentations around the globe, she has presented her research to major international organizations including the Asian Pacific Economic Cooperation (APEC), the International American Development Bank (IADB), the International Centre for Settlement if Investment Disputes (ICSID), UNCTAD, and before govern officials of Argentina, Australia, Canada, France, Germany, Korea, The Netherlands, Sweden, Switzerland, the United Kingdom, and United States. She is on the Executive Council of the Institute for Transnational Arbitration and the immediate past Chair of the Academic Council, an active member of the American Society of International Law and a former member of the Executive Council, and an elected member of the American Law Institute. Elected to the international Who's Who of Commercial Arbitration since 2008, she is qualified to practice law in England and Wales, Minnesota, and the District of Columbia.

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