Over 400 practitioners, academics and other members of the arbitration community gathered at Freshfields’ London offices on Wednesday evening for the 34th annual Freshfields and Queen Mary University arbitration lecture.
Recent speakers have included Gary Born, Professor Lucy Reed, the Rt Hon Lord Mance, Professor Emmanuel Gaillard and the Rt Hon Lady Justice Gloster.
This year’s lecture was delivered by Professor Brigitte Stern, and was named after the Paul Gauguin painting entitled ‘D’où venons-nous? Qui sommes-nous? Où allons-nous?’.
Professor Stern addressed these three questions in the context of investment arbitration, considering arbitration as both an art and a science. After charting the origins of investment arbitration and the rise in ICSID cases to the present day, Professor Stern spoke more soberly about the future. She observed that investment arbitration was “at existential risk” as a result of various criticisms based on “post-truths or half-truths”.
Focussing on Europe, Professor Stern described the decision of the CJEU in Achmea as an “earthquake in the arbitration world”. Following the political declarations made by EU Member States in January 2019 and the treaty recently agreed in October, we can expect the termination of 168 intra-EU BITs, including their sunset clauses, which Professor Stern said would result in EU Member States taking back the scales of justice vis-à-vis foreign investors and “State sovereignty making a comeback”.
Speaking about the various plans on foot for a multinational investment court to replace arbitral tribunals in this context, she expressed scepticism about the ability of such courts to address the alleged criticisms of the current system, including with respect to the size of the pool of arbitrators, diversity and issues of bias. Such criticisms, she noted, were “not rooted in reality but in rhetoric”.
After the lecture, Freshfields welcomed over 100 attendees for a dinner hosted by London arbitration partners: Sylvia Noury, Nigel Rawding QC, Jane Jenkins, Will Thomas and Oliver Marsden. Sylvia Noury, gave the after dinner speech.
Last night, Freshfields hosted an informal Q&A with Professor Stern for young arbitration practitioners and students in association with ICDR Y&I. Senior associates, Natalie Sheehan and Ella Davies, moderated the session.
For the first time this year, the lecture is available to listen to in full via podcast: https://play.buto.tv/yMHvJ