Herbert Smith Freehills Lawyers Andrew Cannon and Hannah Ambrose talk investor-state dispute settlement, ahead of London International Disputes Week 2021

Herbert Smith Freehills Lawyers Andrew Cannon and Hannah Ambrose talk investor-state dispute settlement, ahead of London International Disputes Week 2021

LIDW, which is set to be hosted virtually from 10 – 14 May 2021, will bring together legal practitioners from around the world to celebrate the heritage of London as a disputes centre and to consider the future of global dispute resolution.

Herbert Smith Freehills is a proud founding member of this important event and joined forces with more than 50 other law firms, as well as barristers chambers, academics, legal commentators and dispute resolution organisations, to initially help launch the week.

On the lead-up to the event, Hannah and Andrew will answer some questions on why LIDW is so important for the Capital and some key issues related to investor-state disputes.

Why is it important that London hosts International Disputes Week?

In the midst of global social, political and economic turbulence, it is apt that London continues to provide an opportunity for participants around the world to come together, reflect and exchange views around key issues pertaining to dispute resolution and the rule of law. London is a leading hub for international dispute resolution across many sectors. It also remains a centre of gravity for engaged, energetic and open-minded debate for a spectrum of stakeholders interested in commercial disputes issues and the resolution of international law disputes.

Do you have any predictions for the future of investor-state dispute resolution?

Investor-state dispute resolution has been under scrutiny for a number of years, leading to intense focus on certain elements of its procedure in particular. This long-term state of orchestrated review has already introduced some welcome reform, but can risk distracting attention from organic, substantive development and other opportunity, particularly in relation to sustainable investment, environmental protection, and human rights. In due course, and as investment protection moves incrementally away from bilateral treaties and into the framework of trade and co-operation agreements with broader aims, these areas may come to the fore.

Any impacts from the pandemic that you're keeping an eye on?

The actions of States taken to address the pandemic gave rise to immediate questions as to the relevance of investment treaty protections. To the extent claims materialise, they will test the ability of the framework of rights and obligations between investors and states to respond to such unprecedented circumstances. However, and in any case, we would anticipate that draft treaties providing for investment protection will be scrutinised more carefully with the pandemic in mind. In particular, States may try to enshrine additional “flex” to ensure that they can take all necessary action to deal with a health crisis, even where this may interfere with the private rights of investors. A similar approach was taken in the aftermath of the financial crisis, with prudential financial carve outs reflected in some treaties, permitting a degree of derogation from the protections otherwise available to investors.