Training

2012 INTERNATIONAL INVESTMENT AGREEMENTS AND INVESTOR-STATE ARBITRATION

Overview

In recent years, there has been a dramatic increase in the number of bilateral investment treaties and other agreements with investment related provisions. There has also been a sharp increase in the number of disputes between foreign investors and host governments. This course deals with issues arising out of these developments and will focus on; (i) international standards for the treatment of investments and (ii) various methods for resolution of investment related disputes, including mediation, contract renegotiation and arbitration. The course will cover topics of interest to lawyers, investors and government officials responsible for drafting, negotiating and interpreting investment agreements and resolving investment disputes.

Course Outline

Basic Standards for the Treatment of Foreign Investment

• National laws and regulations
• Minimum standards under customary international law
• Background on the history and scope of BITs, free trade and other agreements relating to investment
• Substance of common investor protection clauses, including national treatment, MFN, fair and equitable treatment, transfer of funds and expropriation and nationalization

Investor-State Dispute Settlement

• Alternative forms of dispute resolution
• Dispute resolution clauses
• Types of international arbitration, including ICSID, NAFTA, CAFTA, ECT, UNCITRAL and various institutional fora
• Selection of forum and the arbitrators
• Role of the arbitral tribunal and conduct of proceedings
• Sources and choice of applicable law
• Possible defenses to investor claims
• Methods of calculating damages
• Recognition, enforcement and challenges to an arbitral award
• Role of national courts

Course Advisors

Ian A. Laird is a Special Legal Consultant in the International Dispute Resolution Group of Crowell & Moring LLP in its Washington, D.C. office. He is also licensed to practice as a barrister & solicitor in Ontario, Canada. His practice is focused in the field of international investment law and arbitration. Ian has spoken extensively and published numerous articles on international investment arbitration, and serves as Editor-in-Chief of InvestmentClaims.com, the on-line investment arbitration award service published by Oxford University Press.

Dr. Borzu Sabahi is an attorney in the International Arbitration group of Curtis Mallet Prevost Colt & Mosle LLP in Washington, DC. He is licensed to practice in New York and District of Columbia. He focuses his practice on representing governments and state-owned entities in investment treaty arbitration, international commercial arbitration and public international law matters. Mr. Sabahi's experience includes serving as counsel and expert in cases brought under a number of bilateral investment treaties, NAFTA Chapter 11, and DR-CAFTA Chapter 10 and under the rules of UNCITRAL, ICSID, ICC, ICDR and LCIA in a variety of industrial sectors, including oil and gas and power generation. Mr. Sabahi is also an adjunct professor of law at Georgetown University Law Center where he co-teaches a seminar on investor state dispute resolution. He regularly speaks at conferences and has widely published on various aspects of international investment law, including a comprehensive casebook entitled "Investor State Arbitration" (co-author, Oxford 2008).

Sample of Selected Faculty

Chris Ryan, Shearman & Sterling LLP

Uche Onwuamaegbu, International Centre for Settlement of Investment Disputes (ICSID)

 Kenneth Hansen, Partner, Chabourne & Parke LLP

Bob O'Sullivan, Department of Legal Affairs, Overseas Private Investment Corporation (OPIC)

Jonathan Greenblatt, Partner, Shearman & Sterling LLP

2011 ADVANCED ARBITRATION AND MEDIATION

Overview

This course strengthens participants' knowledge of alternative methods of dispute resolution (ADR) and arbitration. The course examines the theory behind the advanced legal issues involved in international commercial arbitration, and emphasizes the development of practical skills through case studies, workshops and exercises. The course is intended for judges, lawyers, non-lawyer professionals, executive branch government officials, judicial officers, officials of judicial and legal training units, and court administrators.

Course Outline

International Arbitration (Advanced)

 The Arbitration Agreement

•  Legal issues: characteristics, validity, scope, applicable law, transfer, termination
•  Case studies
•  Negotiating and drafting exercise (participants will engage in negotiation exercises)

The Arbitral Tribunal

•  Legal issues: appointment, qualification, arbitrator ethics and challenges
•  Case studies

The Arbitration Proceedings

• Legal issues: seat of the arbitral tribunal, commencing managing proceedings, terms of reference, discovery of documentary evidence, interim relief, submitting testimony, conduct of the hearings, and awards
• Choosing arbitration rules: comparative study of arbitration rules

Law Governing the Merits of the Dispute

• Legal issues: choice of law, absence of law, international public policy and mandatory rules of law
• Case studies
• Simulation exercise

Court Measures

• Legal issues: the degree of court intervention, interim measures of protection, appointment of arbitrators, judicial assistance in the arbitration process, judicial review
• Case studies

Enforcement of Arbitral Awards: Case studies

Issues of Particular Interest

• Arbitration in construction matters, damages and remedies in arbitration, arbitration involving states or government agencies, investment disputes.

Negotiation & Mediation: Process, Skills and Techniques

Defining Negotiation and Mediation and the Underlying Relationship

Negotiation Emphasis

• Different approaches to negotiation
• Assessing the interests of both parties
• Setting aspiration and bargaining bases, and conceding strategically
• Listening and questioning skills
• Why negotiations fail
• Breaking deadlock

Mediation Emphasis

• Mediator role and styles
• Determining the mediation process, including opening statements by mediator and parties

Finding resolution in mediation (incorporating important aspects introduced above, such as uncovering interests and breaking deadlock)

• Closure and follow-up

The Role of Advocate and Litigant

• How to prepare for the mediation
•  How to devise a settlement strategy
•  How to advocate for yourself and your client
•  How to manage your client during mediation

COURSE ADVISORS

David Branson is Director of ILI's Alternative Dispute Resolution Center. He specializes in arbitration work and now serves as an arbitrator. He has served as an arbitrator and participated in proceedings as counsel in arbitrations conducted under the rules of the International Chamber of Commerce, the London Court of International Arbitration, the International Centre for Settlement of Investment Disputes, UNCITRAL and the American Arbitration Association. Mr. Branson has been engaged in litigation practice for 33 years, appearing before the Supreme Court of the United States, several Courts of Appeal and District Courts. He received his LL.M. from St. Johns College, Cambridge University and his J.D. from Georgetown University.

Jane Willems As a lawyer in private practice and an arbitrator, Jane Willems has regularly lectured on International Commercial Arbitration in International Law Institute courses in Washington DC. She has developed, and since 2009 she has co-conducted with David J. Branson the new annual program of International Commercial Arbitration at the International Law Institute. Ms. Willems has participated in international arbitrations and other forms of ADR and in international contractual and international development projects. She served as counsel, arbitrator, and secretary to arbitral tribunals in numerous arbitration proceedings (ICC, LCIA and ad-hoc) and as counsel before French courts in arbitration related matters. She has been admitted to practice to both the Paris Bar and the Bar of the State of California (USA). Jane Willems has been teaching International Contracts and Arbitration at the University of Angers, France; she holds a Master's degree in International Business Law and a Master's degree in Business Law from the University of Paris I Sorbonne.

2012 ADVANCED ARBITRATION AND MEDIATION

Overview

This course strengthens participants' knowledge of alternative methods of dispute resolution (ADR) and arbitration. The course examines the theory behind the advanced legal issues involved in international commercial arbitration, and emphasizes the development of practical skills through case studies, workshops and exercises. The course is intended for judges, lawyers, non-lawyer professionals, executive branch government officials, judicial officers, officials of judicial and legal training units, and court administrators.

Course Outline

International Arbitration (Advanced)

 The Arbitration Agreement

•  Legal issues: characteristics, validity, scope, applicable law, transfer, termination
•  Case studies
•  Negotiating and drafting exercise (participants will engage in negotiation exercises)

The Arbitral Tribunal

•  Legal issues: appointment, qualification, arbitrator ethics and challenges
•  Case studies

The Arbitration Proceedings

• Legal issues: seat of the arbitral tribunal, commencing managing proceedings, terms of reference, discovery of documentary evidence, interim relief, submitting testimony, conduct of the hearings, and awards
• Choosing arbitration rules: comparative study of arbitration rules

Law Governing the Merits of the Dispute

• Legal issues: choice of law, absence of law, international public policy and mandatory rules of law
• Case studies
• Simulation exercise

Court Measures

• Legal issues: the degree of court intervention, interim measures of protection, appointment of arbitrators, judicial assistance in the arbitration process, judicial review
• Case studies

Enforcement of Arbitral Awards: Case studies

Issues of Particular Interest

• Arbitration in construction matters, damages and remedies in arbitration, arbitration involving states or government agencies, investment disputes.

Negotiation & Mediation: Process, Skills and Techniques

Defining Negotiation and Mediation and the Underlying Relationship

Negotiation Emphasis

• Different approaches to negotiation
• Assessing the interests of both parties
• Setting aspiration and bargaining bases, and conceding strategically
• Listening and questioning skills
• Why negotiations fail
• Breaking deadlock

Mediation Emphasis

• Mediator role and styles
• Determining the mediation process, including opening statements by mediator and parties

Finding resolution in mediation (incorporating important aspects introduced above, such as uncovering interests and breaking deadlock)

• Closure and follow-up

The Role of Advocate and Litigant

• How to prepare for the mediation
•  How to devise a settlement strategy
•  How to advocate for yourself and your client
•  How to manage your client during mediation

COURSE ADVISOR

Anne Marie Whitesell is Of Counsel at Dechert LLP. Before joining Dechert, Ms. Whitesell was Secretary General of the ICC International Court of Arbitration from 2001 to 2007. Ms. Whitesell supervised approximately 1,100 international arbitration cases each year involving parties from over 120 countries. She has practiced with law firms in both the United States and in France and was a lecturer at the Université de Paris I, Panthéon-Sorbonne and the Institut de Droit Comparé (Université de Paris II). She is admitted to the New York State Bar, the Bar of the District of Columbia, and to the US District Courts for the Southern and Eastern Districts of New York.

2011 INTERNATIONAL OIL AND GAS DEVELOPMENT

Overview

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Course Outline

Fundamentals

• Industry overview (upstream, midstream, downstream)
• Oil and gas terminology
• Key issues in international oil and gas projects
• Role of host government and its agencies
• Ownership and exploitation of reserves
• Host country's legal and regulatory framework and fiscal regime
• Overview of contracts used in oil and gas industry
• Unconventional hydrocarbons, and distinctive contractual and business features

Negotiation Strategy and Negotiating Tools (participants will engage in the interactive workshop)

• Negotiation strategy and objectives of Host Governments/National Oil Company (NOC) vs. those of International Oil Companies (IOCs) 
• Negotiation framework, asymmetries, contingencies and competitive strategic context
• Design of a host country's legal and fiscal regime; stabilization
• Bid rounds vs. bilateral negotiations
• Negotiating skills and tools

Host Government Upstream (Exploration & Production (E&P)) Agreements

• Overview of upstream operations and E&P agreements (types and trends by region)
• Key differences between Production Sharing Contracts (PSCs), concessions, service contracts and JV contracts
• Analysis of PSCs: main features, key issues from perspectives of host governments/NOCs and IOCs, and principal non-fiscal terms (work programs, management and control, relinquishments, local content, domestic supply, assignments)
• Economics of PSCs and other E&P agreements: fiscal regime and valuation issues (DCF vs. other valuation techniques) (participants will engage in negotiation exercises with financial modeling)

Upstream Joint Ventures (JVs) between Host Governments/NOCs and IOCs

• Incorporated vs. unincorporated JVs 
• Host Government/NOC participation
• Benefits and risks of JV arrangements
• Overview of principal terms and drafting issues in Joint Operating Agreements (AIPN model) for unincorporated JVs and Joint Venture/Shareholders Agreements for incorporated JVs (rights and obligations of an operator and non-operating parties, management and control, access to data, transfer of technology, exclusive operations, disposal of production, abandonment, secondment, unitization, liabilities, allocation of costs, accounting)

Buying and Selling Existing Upstream Assets by Host Governments/NOCs

• Transaction structures (corporate/stock acquisitions vs. asset sales)
• Due diligence and risk management
• Principal terms of sale and purchase agreements (valuation of assets and purchase price adjustments, warranties, indemnity, governing law)
• Closing the deal

Midstream and Downstream Operations

• Access to market, pipelines, transportation
• Refining, trading, distribution
• Overview of principal contractual arrangements in midstream and downstream industries (including gas sale agreements, crude oil sale agreements, lease contracts, other service agreements)

Special Considerations

• Current issues and trends
• Anti-corruption and other compliance issues
• Corporate social responsibility and environmental considerations

Dispute Resolution

• Types of dispute resolution mechanisms in oil and gas matters (mediation, arbitration, litigation, expert determination)
• Applicable law
• Drafting dispute resolution clause
• Investment protections (BITs)
• Enforcement of arbitral awards
• Waiver of sovereign immunity

Faculty

ILI is honored to have included in this program the following distinguished and highly specialized faculty and speakers:

• Daniel Johnston  -  Daniel Johnston & Co., Inc.
• Robert Lesnick  -  The World Bank
• Steven Otillar  -  Dewey & LeBoeuf
• Matthew Kirkland  -  Fulbright & Jaworski
• Dr. Borzu Sabahi  -  Fulbright & Jaworski
• Keith Larson  -  Hogan Lovells
• Thomas Holmberg  -  Baker Botts
• Dr. Andrew Thompson  -  ACT Financial Consulting

Course Advisors 

Mr. Jonathan Cahn is Principal at the international law firm of Baker & McKenzie LLP. Mr. Cahn has over 20 years of experience in a wide variety of cross-border investment and financing transactions in the CIS, Latin America, Africa, the Middle East, and China. Mr. Cahn has advised on numerous acquisitions of oil and gas companies, exploration and production agreements, including PSCs, as well as the construction and financing of transportation and downstream infrastructure. He was advisor to the Government of Kazakhstan under a World Bank legal reform program specifically advising on the Law on Oil, Law on Subsoil, and Law on Foreign Investment. He was privatization counsel to the Government of Kazakhstan in the sale of its interest in its state-owned oil companies GAO Yuzhneftegaz and GAO Aktobemunaigaz and the state-owned refinery GAO Shymkent. Mr. Cahn also has extensive experience in international arbitration, particularly as to investment related disputes.

Ms. Marian Hagler is Of Counsel at the international law firm of Baker & McKenzie LLP. Ms. Hagler has over 20 years of experience in international transactions and her practice focuses on complex international energy sector M&A and includes projects in the Middle East, North Africa, Russia and Central Asia.  Ms. Hagler specializes in advising national oil companies and international energy companies on their foreign upstream acquisitions. Ms. Hagler has served as an Adjunct Professor of Law at Georgetown University, and Chair of the District of Columbia Bar Association International Section.