Donna Faye Imadi ‘22
Staff Editor
Marlyse Vieira ‘22
Staff Editor
For the first time in UVA’s history, some of the top attorneys in the field of international arbitration filled the Purcell Reading room on January 31. A former LLM student, Matheus Bastos, found that he could make a difference in the UVA Law community by illuminating the field of international arbitration through hosting the first Arbitration Day at UVA Law in collaboration with LALO.
The symposium included discussion of international commercial arbitration, young practitioners perspectives of breaking into the field, investment arbitration and human rights, state and investor interests, and a closing keynote speech from Nigel Blackaby, a Partner at Freshfields and renowned international arbitration specialist.
The most robust and growing field of international commercial arbitration is where two private parties’ consent to dispute resolution mechanisms arising from cross-border commercial transactions, allowing parties to avoid litigation in national courts. However, it was the issues in investor-state arbitration that really took the limelight throughout the event.
At a time when international development, environmental degradation, industrial development, and shifts from industrial to technological development are occurring, developing countries are seeking to attract investors to sustain their economy. One mechanism to attract investors is for states to offer to engage in arbitration agreements as a method of resolving disputes between two parties. But complications with these mechanisms arise when there’s a conflict of obligations between the state to the investor and the state to its population. Should investors have an obligation to uphold community standards and human rights in their developmental investments? Should states be compelled to uphold the legal obligations to the investor rather than human rights of their population if their obligations are in conflict?
These topics were illuminated in the panel moderated by Professor Camilo Sanchez, on investor-state arbitration and human rights. The debate was set between two attorneys, one representing the view of the “government” of a state and the other attorney representing the view of the private entity (the investor).
Throughout the panel, attention was granted to Argentina, Ecuador, Brazil and many countries which have faced a “Conflict of Obligations” in which compliance with an investment obligation may conflict with human rights obligations for states.
One illuminating example of this was in Argentina. There, an investor had created an agreement with the government regarding an investment in water development where the price was fixed to the US Dollar in the purchase of water. When an unanticipated economic recession hit Argentina, it caused the value of the peso to plummet. This impacted the price of water, which was fixed according to the arbitration agreement with the investor. This created a human rights challenge for Argentina, leaving them with the options of breaching the contract terms or allowing a human rights tragedy to occur wherein the most vulnerable in their populations could not access clean water.
Challenges such as the one Argentina faced might be framed in the broader context as dilemma of states in balancing their duty to preserve the public welfare of their country and the obligations to international actors. As development, and global governance of corporate entities become magnified these are issues that will inspire our generation to formulate new systems to address how these social, economic, and political conflicts may be addressed peaceably and justly.
In the second panel of the day, young associates from Freshfields Bruckhaus Deringer and Debevoise & Plimpton discussed how they began their legal careers in international dispute resolution and offered advice to law students hoping to do the same. These panelists explained the exciting nature of their work and emphasized the importance of gaining experience outside the U.S. to achieve greater expertise.
For current students hoping to enter the field, Panelists Brianna Gorence and Rhianna Hoover ’16 recommended joining a law journal and gaining exposure to actual arbitration news through online resources, as well as choosing a firm that has an arbitration practice group. Multilingualism is a plus. Finally, they endorsed taking courses in international arbitration and law, advanced contracts, and conflict of laws.
Esther Kozakevich ’21 says she attended the event because of her “interest in international work, particularly in Russia and the Middle East. It was great to get a cursory look into the tension between international investment arbitration and human rights, especially from someone working at the firm that I'll be going to this summer.”
Commenting on the importance of the event, Maria Luevano ’21 framed it perfectly in remarking, “This event highlighting international arbitration was important for law students because while it’s a bit of a niche field, it has also expanded rapidly in the last decade and offers a lot of exciting and interesting career opportunities. Anyone interested in travel and working on cases involving novel and dynamic issues should consider looking into arbitration.”
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