SMU Asian Arbitration Lecture 2022

Please join us at the Herbert Smith Freehills-SMU Asian Arbitration Lecture on Wednesday, 23 November 2022, 5:00 PM.

This year’s lecture will be presented by Prof. Dr. Diane Desierto on the subject of “Human Rights, Environmental and Climate Change Law in the Substance and Procedure of International Arbitration“.

Inter-State, investor-state and commercial arbitration in recent years has increasingly wrestled with the complexities of human rights, environmental, and climate change law and their impact on the substance and procedure of international arbitration. This lecture will map all of these affected areas of substance and procedure for inter-State, investor-State and commercial arbitration, and conclude with specific normative recommendations on where international arbitration has to adapt, and where it has to stay the course, despite (or precisely because of) the evolutive nature of human rights law, environmental law, and climate change law and their growing presence in international arbitration disputes.

The lecture will be followed by a panel discussion moderated by Gitta Satryani (Partner, Herbert Smith Freehills) who will be joined by Guest of Honor Ms Daphne Hong (Solicitor-General), and Prof. Dr. Diane Desierto, Antony Crockett (Partner, Herbert Smith Freehills) to discuss the issues raised in the lecture and answer questions from the audience.

We are pleased that the lecture will return to an in-person format this year and will be held at the Mochtar Riady Auditorium at Singapore Management University, Victoria Road. The Lecture commences at 5:00 PM with a post-event cocktail reception from 6:30 PM – 7:30 PM. Further details of the Lecture including the Programme can be found here.

The Herbert Smith Freehills-SMU Asian Arbitration Lecture Series was established in 2010 and made possible by a term fund contribution by Herbert Smith Freehills. The objective of the Lecture Series is to promote collaborative forms of dispute resolution and access to justice, and in so doing to promote Singapore as the centre for dispute resolution in Asia, particularly in arbitration and mediation.

The lecture will be a SILE accredited CPD activity (1.5 points).

For more information, please contact Gitta Satryani, Partner, Alastair Henderson, Partner, Antony Crockett, Partner, or your usual Herbert Smith Freehills contact.

Gitta Satryani
Gitta Satryani
+65 91254216
Alastair Henderson
Alastair Henderson
+65 91790907
Antony Crockett
Antony Crockett
+852 93353752

Bear Creek Mining Corp. v. Peru: the potential impact on damages of an investor’s contributory action and failure to obtain a social license

In an award dated 30 November 2017 (the “Award“), an ICSID Tribunal ordered Peru to pay around US$30.4million to Canadian company Bear Creek Mining (the “Claimant“) following its finding that a 2011 decree (“Decree 032“) constituted an unlawful indirect expropriation of the Claimant’s right to operate the Santa Ana mine (the “Project“).

This post discusses the disagreement between Karl-Heinz Bockstiegel (the president of the tribunal) and Michael Pryles (appointed by the Claimant) (together, the “Majority“), and Prof. Philippe Sands QC (appointed by Peru), on the assessment of damages. Prof. Sands considered that the damages should be reduced due to contributory fault on the part of the Claimant.

The impact the Claimant’s conduct had on the Tribunal’s calculation of damages was, in any case, significant. Given the extent of, and reasons for, the opposition to the Project by the time of Decree 032, the Tribunal thought a hypothetical purchaser would not have obtained the necessary ‘social license’ to proceed with the Project. Ultimately it awarded the Claimant only a fraction of the US$522 million claimed. The reduced damages award emphasises the importance of respect for human rights and engagement with indigenous communities by investors.

The respective views expressed by the arbitrators concerning the Claimant’s conduct are also interesting in light of the broader debate about the relevance of the human rights of non-parties in investor-state arbitration.

An overview of the overall Award can be found in the post published on 16 December 2017 on the Kluwer Arbitration Blog. Continue reading

3rd EFILA annual conference 2018: parallel states’ obligations in investor-state arbitration – 5 February 2018, London

The European Federation for Investment Law and Arbitration (EFILA) will be holding its third Annual Conference on 5 February 2018 at the Senate House in London. The conference will focus on four topics:

  1. non-disputing third parties and their influence on arbitration;
  2. investment regulation and arbitration;
  3. human rights, environment and arbitration; and
  4. the proposed Investment Court System.

For more information and details on how to reserve a place, please see the conference flyer here. Continue reading

Environmental and Human Rights issues in Africa have international implications – know what rights and remedies apply

In the first of our regular Africa themed webinars, on Thursday 5 October 2017, 1.00 – 2.00pm BST, we will consider the international implications of environmental and human rights issues in Africa, including:

  • The extraterritorial impacts of a local crisis: international treaty claims and the growing trend of class actions
  • To stay or to go: the risks of exit vs. remaining in-country following a crisis
  • The importance of investment structuring to maximise protection
  • Relying on treaty rights in Africa if things go wrong
  • Preventing and managing crises in Africa


John Ogilvie, Partner, Dispute Resolution, London

Andrew Cannon, Partner, International Arbitration, Paris

Laurence Franc-Menget, Of Counsel, International Arbitration, Paris

To register for the webinar, please contact Prudence Heidemans. Continue reading

Urbaser v. Argentina and Burlington v. Ecuador: Investment arbitration is not over the counterclaims yet

Two recent decisions by tribunals have advanced the body of tribunal practice considering the issue of counterclaims by respondent states in investment treaty arbitration: Burlington Resources Inc. v. Ecuador, in which the tribunal awarded damages against the investor for breach of Ecuadorian environmental law in the performance of its investment, and Urbaser SA and Consorcio de Aguas Bilbao Bizkaia v. Argentina, in which the tribunal accepted jurisdiction to hear Argentina's counterclaim asserting that the investor had violated international human rights obligations. These decisions arise in the context of conceptual challenges to the pursuit of counterclaims in investment arbitration.

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Herbert Smith Freehills acts for JUSTICE in intervention in Supreme Court case

Herbert Smith Freehills acted for JUSTICE, a UK based law reform and human rights organisation, in relation to its intervention in Susan Smith & Others v Ministry of Defence. The case was heard by the Supreme Court during the week commencing 18 February 2013.

The claims concerned the deaths of two UK soldiers who were on duty in Iraq. Their deaths were caused by the impact of improvised explosive devices (IEDs) which detonated beside the Snatch Land Rovers in which they were travelling. The families of the soldiers alleged, amongst other things, that the Ministry of Defence (MoD) was in breach of its obligation to safeguard the soldiers’ lives as protected under Article 2 of the European Convention on Human Rights (ECHR) by failing to provide better armoured vehicles or counter measures to the IEDs.

The issue upon which JUSTICE intervened was whether or not the soldiers were at the time of their deaths within the jurisdiction of the UK under Article 1 ECHR. Specifically, Article 1 provides that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” which includes Article 2. It is accepted that jurisdiction under Article 1 is primarily territorial (subject to extensions in exceptional situations).

Continue reading