Task Force on Legal Representation of American States in Investment Arbitration

The purpose of this report is to determine the different ways American States that are involved in investment arbitration proceedings choose their legal counsel. To achieve this goal, the Task Force built a survey for representatives from American States to gather data regarding the hiring of external counsel to defend investment arbitration claims. Nineteen American States submitted answers to the survey, either fully or partially.

The report summarizes the current practice within the American States, their contracting procedures, requirements, and priorities, providing guidelines to law firms that wish to be considered as possible legal representatives in investment arbitrations. It also includes policy recommendations and describes the challenges that the States or law firms can face throughout the retainment of legal counsel.

• American States rely heavily on external counsel to defend against foreign investors’ claims. Of the nineteen States surveyed, only three indicated that the defense of such claims is usually handled exclusively by the States’ in-house lawyers; the rest rely on external counsel.
• All States surveyed except for one have developed an internal structure or office for coordinating the State’s defense to investment arbitration disputes. These offices are found in the State’s Attorney General’s Office, the Foreign Affairs Ministries, and the Trade, Treasury, or Economy Ministries. For five States, the State’s defense is coordinated by an interdepartmental group or Committee with representatives from several government bodies.
• Most of the States have developed policies or guidelines for hiring external counsel. The hiring is usually done through either direct contracts or by offering invitations to bid to firms that have already been pre-selected by the States. The processes are in part based on the States’ procurement or government contracting laws and guidance.
• The requirement for the selected law firm to submit a preliminary case analysis and a plan to contribute to the improvement of the State’s capacity to handle investor-State disputes are requisites that States highly appreciate when receiving the offer of legal services.
• When deciding which law firm the States would hire as external counsel, the financial offer is as crucial for the States as the previous experience the law firm has in investment arbitration and in representing States. The language capabilities of external counsels are likewise a fundamental requirement, firstly, in relation to having a lawyer with native fluency in the language in which the arbitration proceeding is being conducted, and secondly, having lawyers who speak the language of the State on its team.

Ultimately, the report provides a comprehensive overview of the current practices and challenges faced by American States in hiring external legal counsel for investment arbitration. It offers valuable guidelines and policy recommendations to improve the process and ensure high-quality legal representation while keeping costs reasonable.

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Task Force Leadership

The Task Force is co-chaired by Ricardo Vásquez Urra (Partner, Vásquez Urra Abogados, Santiago de Chile) and Analía González (Partner, Baker Hostetler LLP, Washington DC).

Ricardo Vásquez Urra is the founding Partner of Vásquez Urra Abogados, Law Firm based in Santiago, Chile, and is head of its litigation and arbitration practice. He specializes in dispute resolution, conflict prevention, litigation, commercial, investment and construction arbitration, and M&A disputes. Ricardo has represented individuals, national and international companies and governments, in a wide range of industries, including energy, mining, construction, health, pensions, retail, banking, investment funds, reinsurance and securities, experienced in ad-hoc and institutional arbitrations under the ICC, UNCITRAL, ICSID and CAM Santiago arbitration rules, governed by various substantive laws, and seated in diverse jurisdictions. Ricardo also acts as arbitrator in national and international forums being on the Panel of Arbitrators of the International Centre for Settlement of Investment Disputes of the World Bank (ICSID), the Beijing Arbitration Commission/Beijing International Arbitration Centre, and the Santiago Arbitration and Mediation Centre (CAM Santiago).

Analía González is the leader of Baker Hostetler LLP's international litigation and arbitration practice for Latin America, based in Washington DC. She specializes in international arbitration and litigation, with a focus on investment and commercial arbitrations. Analía has represented clients before a variety of arbitral tribunals, including the International Center for Settlement of Investment Disputes (ICSID), and the International Chamber of Commerce (ICC) and the International Court of Justice (ICJ) and in ad hoc arbitrations in the framework of the United Nations Commission on International Trade Law (UNCITRAL). Analía works as an arbitrator in commercial arbitrations under the auspices of the International Court of Arbitration of the International Chamber of Commerce (ICC) and the International Court of Arbitration of the American Chamber of Commerce of Peru (AmCham-Peru). She is also a member of the ICSID Panel of Arbitrators, appointed by Uruguay. She served as Vice President of the Investment Arbitration Committee of the International Chamber of Commerce (ICC Mexico) (2018-2022), and as a member of the International Arbitration Editorial Board of the prestigious Law360 publication (2021-2022). She has received numerous accolades from prestigious international publications such as Chambers Latin America, the Legal 500 USA, Who’s Who Legal and Latinvex.

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Task Force Members

The Members of the Task Force are: