24th ITA-ASIL-ICSID Joint Conference

Overview

The ITA-ASIL-ICSID Conference is presented annually by the ITA Academic Council with the American Society of International Law (ASIL) and the International Centre for Settlement of Investment Disputes (ICSID). The conference will take place following the ASIL Annual Meeting. Scholarship is a hallmark of this conference.

From its contested origins to its central place in today's investment treaties, the right to regulate has reshaped the relationship between states and foreign investors. This conference traces that evolution—examining how the doctrine emerged, how far it extends today, and how it may be applied in future cases. At the heart of the debate lies a fundamental question: is the right to regulate a freestanding legal principle, both in theory and in practice, or is it merely defined by reference to certain substantive standards?

The conference faculty will trace the origins of the right to regulate, and consider how (new) treaty provisions, arbitral jurisprudence, and policy reforms respond to concerns that investment obligations may unduly constrain legitimate public welfare regulation. At the same time, they will ask and critically reflect on whether the right to regulate, as currently framed, adequately protects the legitimate expectations and rights of foreign investors under treaties and contracts.

Conference Co-Chairs

Prof. dr. Eric De Brabandere
Professor of International Dispute Settlement Law
Leiden Law School; DMDB Law
Brussels, Belgium

Meg Kinnear
Low & Kinnear Dispute Resolution LLC
Washington, D.C.

Registration Options

Due to the requirements of building security, the deadline to register is April 15th. Please note that audience space in the auditorium is limited to no more than 100 individuals, so the conference may sell out before that date. We also encourage you to book a hotel room early given that the World Bank Group and IMF Spring Meetings conclude on April 18th.

• $335 - Regular Registration Fee
• $300 - ITA Advisory Board Member or Correspondent Member
• $300 - ITA Supporting or Sustaining Member Employee
• $300 - Young ITA Member
• $300 - ASIL Member
• $200 - ASIL Annual Meeting Speaker
• $250 - ASIL Annual Meeting Registrant
• $225 - Full-Time Academic Employee
• $225 - Full-Time Government Employee
• $225 - Full-Time Non-Profit Employee
• $100 - Full-Time Student

Schedule and Faculty

8:00 - 9:00 am - NETWORKING COFFEE & REGISTRATION

9:00 - 9:15 am - Welcome and Introduction

• Prof. Charles H. (Chip) Brower II, ITA Chair; Miller Canfield; Distinguished Service Professor and Foster Research Scholar, Wayne State University Law School, Detroit, Michigan
• Prof. Oona A. Hathaway, ASIL President; Gerard C. and Bernice Latrobe Smith Professor of International Law and Director, Center for Global Legal Challenges, Yale Law School, New Haven, Connecticut
• Martina Polasek, Secretary-General, International Centre for Settlement of Investment Disputes, Washington, D.C.

9:15 - 10:00 am - Keynote Discussion - The Right to Regulate: Origins, Foundations, and Scope

The right to regulate has reshaped the relationship between states and foreign investors. Recent investment treaties have included provisions on the right to regulate, in various forms and with different effects.

This double keynote will consider the emergence and origins of the right to regulate, the reasons behind its inclusion in investment treaties, whether consensus has been reached on the applicable test for the right to regulate, and if so, the scope of that test. More fundamentally, this discussion will consider whether the right to regulate is an independent legal principle, or whether it can only be defined by reference to the operation of certain substantive standards, such as expropriation and fair and equitable treatment.

Moderator: Martina Polasek, Secretary-General, International Centre for Settlement of Investment Disputes, Washington, D.C.

Speakers:

• Abby Cohen Smutny, White & Case LLP, Washington, D.C.
• Prof. Sean D. Murphy, Manatt/Ahn Professor of International Law, George Washington University Law School, Washington, D.C.

10:00-10:20 am - COFFEE BREAK

10:20 - 11:20 am - Defining the Right to Regulate in Investment Treaties

This panel will focus on the evolving right to regulate clauses in treaties. It will consider how states approach the right to regulate in investment treaties, and the impact of different formulations on the interpretation and application of the treaty.

The function assigned to the right to regulate also remains an open question, as it can operate as an interpretative tool for other treaty provisions or as an exception on which the State may rely to legally justify its measures. The panel will consider what, in reality, the right to regulate is reaffirming and how effective such a “reaffirmation” is.

Moderator: Prof. Mónica Pinto, Professor Emerita, University of Buenos Aires, Buenos Aires, Argentina

Panelists:

• Sylvie Tabet, General Counsel and Director, Trade Law Bureau, Government of Canada, Ottawa, Canada
• Prof. Kathleen Claussen, Professor of Law; Anne Fleming Research Professor, Georgetown Law, Washington, D.C.
• Prof. Won L. Kidane, Professor of Law, Villanova University Charles Widger School of Law, Villanova, Pennsylvania
• David Bigge, Wordstone Dispute Resolution, Washington, D.C.

11:20 - 11:35 am - COFFEE BREAK

11:35 am - 12:35 pm - Arguing the Right to Regulate: Lessons Learned

This panel will examine how the right to regulate is presented and argued in investment arbitration, drawing on Philip Morris v. Uruguay, the Spanish renewable energy cases, the Eco Oro case, and the Saluka case. It will consider how tribunals have addressed the right to regulate and whether their decisions reflect a consistent and workable doctrine. The panel will explore whether the right to regulate is best argued as a bar to liability, a defense, an exception, an interpretive guideline, or a constraint on damages. It will also examine how these arguments affect case preparation, expert selection, and claims for relief.

Moderator: Prof. Dr. August Reinisch, Professor of International and European Law, University of Vienna, Vienna, Austria

Panelists:

• Andrea Menaker, White & Case LLP, London, United Kingdom
• Christina L. Beharry, Foley & Lardner LLP, Washington, D.C.
• Nigel Blackaby KC, Freshfields, Washington, D.C.
• Francisco Grob, Jana & Gil Dispute Resolution, Santiago, Chile

12:35 - 1:30 pm - Networking Luncheon

1:30 - 2:30 pm 

A Conversation with

Prof. Donald M. McRae
Professor Emeritus
University of Ottawa
Ottawa, Canada

Interviewed by
Meg Kinnear
Low & Kinnear Dispute Resolution LLC
Washington, D.C.

This interview is the latest in a series organized by the ITA Academic Council to record the evolution of modern international arbitration in the words of those who have led it.

2:30 - 2:45 pm - Concluding Remarks

Sponsorship Opportunities

The ITA-ASIL-ICSID Joint Conference, focused exclusively on international arbitration, occurs immediately before the ASIL Annual Meeting in Washington

Oral History Interview (feat. Prof. Donald M. McRae) Sponsor – $2,000 each

• Recognition in all marketing material
• Company/firm logo displayed on conference slides and website
• 2 complimentary conference registrations
• Opportunity to provide one brochure/flyer for placement on registration table

Coffee Break Sponsor – $2,000 (exclusive)

• Recognition in all marketing material
• Company/firm logo displayed on conference slides and website
• Recognition with signage at refreshment station
• 2 complimentary conference registrations
• Opportunity to provide one brochure/flyer for placement on registration table

Networking Luncheon – $1,500 each

• Recognition in all marketing material
• Company/firm logo displayed on conference slides and website
• 1 complimentary conference registration
• Opportunity to provide one brochure/flyer for placement on registration table

Other Information

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