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Community Consultations, Environmental Protection and Investment Projects in International Arbitration


September 26, 2022
8:30 am to 10:00 am EDT


Moderator: José Antonio Rivas – Founder, Xtrategy LLP
Presenter: Ana Milena Vives (Xtrategy LLP)
Panelist: Natalia Angel Cabo (Justice of the Constitutional Court of the Republic of Colombia, Professor of Law at Universidad de los Andes)
Panelist: James Anaya (Former Special Rapporteur on the indigenous peoples rights 2008-2014, Professor of Law at University of Colorado)
Panelist: Andrea Bjorklund (Full Professor and L. Yves Fortier Chair in International Arbitration)

This panel will be hosted by Cámara de Comercio de Bogotá in Bogotá, Colombia (Cl. 67 #8-32)

International projects usually involve multiple stakeholders, among these are local communities, whose interests and priorities might clash with those of multinational corporations. The tension between stakeholders may lead to undesirable consequences affecting the outcome of the project or the communities. Consultations to the communities are carried out to influence administrative and legislative decisions that may affect them. Under international law, pursuant to human rights treaties and international instruments including the ILO Convention 169, consulting the communities that could be affected is binding. In particular, consultations must be undertaken in good faith, seeking to achieve consent. Pursuant to the 1966 International Covenant on Civil and Political Rights (ICCPR), the State must ensure the effective participation of members of minority communities in decisions which affect them. Consultation is a mechanism developed by domestic legislation, that may or may not require—in addition to informing, and asking the communities and/or natives for their feedback—that consent be obtained by the government of the host State to move forward with the investment project.

For example, pursuant to Article 330 of the Colombian Constitution, indigenous and AfroColombian communities (among others) have the right to prior consultation. That right entitles those communities to participate in decisions that may affect their lives, territory and political and economic worldview. Similarly, pursuant to Article 30 of the Bolivian Constitution, indigenous peoples have the right to be consulted through appropriate procedures, whenever legislative or administrative measures related to the exploitation of non-renewable natural resources may affect them.

A handful of investment arbitrations have shed some light on the issue of consultations and community participation. In Bear Creek v. Peru, the tribunal ruled that the State was bound to monitor closely the efforts conducted by the investor to obtain consent from the communities, and to voice its concerns throughout the consultation process. There is increased recognition of social corporate responsibility standards—under which corporations must respect essential human rights.

This panel will consider the right to consultations of communities, the obligation of the State concerning consultations, and several related questions. Do consultations to the communities that might be affected by investment projects require their consent to the project moving forward? Is the State obligated to closely support an investor throughout the process of obtaining a social license to operate? Or must the investor exercise its own due diligence in the consultation process with the communities? Should compensatory damages payable to an investor be reduced on the basis of contributory fault for failure to comply with guidelines provided by the community during consultations?


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September 26 - September 30

September 26 - September 30

International Dispute Resolution and the Ukraine-Russia Crisis

World Arbitration Update (“WAU”) invites you to attend a 75-minute webinar discussion by leading practitioners in the international dispute resolution field on the recent developments concerning the intersection of dispute resolution and the Ukraine-Russia crisis. According to the Kyiv School of Economics, Ukraine has so far experienced economic damage amounting up to $600 billion. Over $10 billion in airplane assets have been reportedly stranded in Russia setting off potentially large insurance claims and related disputes. Yale School of Management has collected data showing that almost 1,000 companies have publicly announced they are voluntarily curtailing operations in Russia to some degree beyond the bare minimum legally required by international sanctions. The Russian parliament continues to consider the expropriation of foreign assets. International disputes involving Russia and Ukraine are arising from the crisis and more likely to follow. Our speakers will discuss related topics, including: the impact of sanctions, the proposed formation of an international claims commission for Ukraine, the impact of the crisis on the legal profession, the potential and current international forums in which Ukrainian businesses and investors could submit legal recourse to address the consequences of the war in Ukraine, as well as an update on the ICJ case, Ukraine v. Russian Federation.

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September 26 - September 30

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The Actions of Russia, Countermeasures and Resulting International Disputes, Including Investor-State and Commercial Arbitration

September 26 at 6:00 pm to 7:30 pm GMT



JULY 12, 2022


6:00 pm to 7:30 pm GMT


Moderators: Gene Burd (FisherBroyles) (TBC)

Presenter: Rob Houston (K&L Gates Straits Law LLC)

Panelist: Tatyana Slipachuk (Of Counsel at Chief Legal Department of the Ukrainian Parliament, Special Advisor at Sayenko Kharenko Law Firm) (TBC)

Panelist: Raja Bose (K&L Gates Straits Law LLC) (TBC)

Panelist: Derek Loh (Deputy Director-General (Economic & Social), Attorney-General’s Chambers, Singapore) (TBC)

Panelist: Simon Chesterman (Dean, National University of Singapore School of Law) 

In response to the imposition of international sanctions on Russia for its invasion of Ukraine, Russia has imposed sweeping economic measures on foreign investors from States it considers “unfriendly”, including Singapore, the UK, the US, and EU Member States.  Both international sanctions on Russia and Russia’s own economic measures on foreign investors have had wide-ranging impacts across global market sectors, affecting foreign investors from around the world both directly through compliance mechanisms and indirectly through international commercial contracts.   

However, a number of venues exist for the resolution of the wide range of disputes anticipated to result from the current crisis.  In particular, foreign investors may still seek protection under investment treaties.  Currently, there are 62 BITs in force between Russia and other States, including 27 States that Russia has determined to be “unfriendly” as a result of international sanctions imposed on Russia.  Such treaties generally include substantive obligations to promote and protect foreign investment (e.g., to provide fair and equitable treatment, not to undertake unlawful expropriation of foreign investments, etc.) as well as for access to investment treaty arbitration against the Host State in certain circumstances.  Such public international law obligations under international investment treaties now appear at odds, for example, with recent economic measures imposed by Russia against foreign investors including: 

  • Currency Transfer Restrictions 

  • Transaction Approval Requirements 

  • Prohibition of Foreign Currency Export 

  • Restrictions on Debt Repayment 

  • Prohibition of Certain Exports and Imports 

  • Non-Enforcement of Intellectual Property Rights 

Also, the Russian Duma has considered additional measures (which many anticipate to be expropriatory) to effect the transfer of ownership or operation of certain foreign investments where foreign investors have ceased operating in Russia in the current climate of international sanctions. The resulting international legal climate arising from Russia’s actions in Ukraine breaks new ground in public and private international law. Practitioners are therefore broadly anticipating a wave of disputes both in international commercial arbitration and in investor-State arbitration, including with respect to claims advanced by covered investors in investment treaty arbitration against Russia for economic measures like the above.   

This panel will explore the implications of these developments both from a global perspective and a regional perspective in Southeast Asia, highlighting the following key points of interest: 

  • The Current International Sanctions Climate 

  • Regional Focus on International Sanctions in Southeast Asia 

  • Consideration of Current Venues for Disputes Arising from the Invasion of Ukraine 

  • Potential Mechanisms for Foreign Investors to Pursue Claims Arising from the Conflict in Ukraine in Investment Treaty Arbitration 

  • Anticipated Disputes and Issues in International Commercial Arbitration Prompted by the Conflict in Ukraine 

  • The Current Landscape for Sovereign Immunity and the Potential for Enforcement of Arbitral Awards Against State Assets 

This program will provide a brief summary of recent developments in relation to Russia’s invasion of Ukraine and identify key legal issues, including the interplay between international sanctions and customary international law (e.g., the characterization of countermeasures and the application of the law of State Responsibility (including State Defences) in Public International Law as well as issues arising in Private International Law and International Commercial Arbitration (such as Force Majeure).  The panel discussion will be followed by a Q&A period as well as a networking session.