Accountability in international investment arbitration.

Author:Kaufmann-Kohler, Gabrielle
Position:Fourth Annual Charles N. Brower Lecture on International Dispute Resolution - Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law

The Charles N. Brower Lecture was convened at 3:00 p.m., Thursday, March 31, 2016, by Lori Fisler Damrosch, President of the American Society of International Law, who gave opening remarks and introduced the speaker: Gabrielle Kaufmann-Kohler of the University of Geneva.


Ladies and gentlemen, it is my great honor as president of the American Society of International Law to welcome you on behalf of the society. Our very first order of business at this, the Fourth Annual Charles N. Brower Lecture, is to acknowledge Charles Brower for his longtime support of the society, as truly one of the most influential individuals in the history of this organization and in support of its ongoing programs. In honor of his extraordinary support of the Society, there is a special presentation we would like to make, and I would like to invite Charles to come up to the podium along with Abby Cohen Smutny, Stephan Schill, and Epaminontas Triantafilou, and they will explain what they are about to do.


A number of Charles's greatest admirers, some time ago, looking forward to the occasion of his eightieth birthday, embarked on a project of putting together a book to celebrate Charles's birthday and his influence on so many of us and as a token of friendship. The result, which Charles already knows about as he has seen a different version of this, but we finally have the beautiful leather-bound version which was published for him. The result is a book, called Practicing Virtue: Inside International Arbitration, which is a collection of forty-two essays written by many of his greatest admirers. Not all, I know quite a number of them who wished to contribute but did not have the chance. Charles has so very many friends and great admirers that it was not difficult for us to assemble such an extraordinary collection of essays by many of the leading experts in the field, who were very pleased to present, as a token of friendship, these manuscripts. I do recommend the book to you. But without further ado, I am going to give this to Charles. Charles, thank you.


Thank you very much. It is amazing. I was not prepared for this presentation today, and I will vacate the podium almost instantly. Epaminontas Triantafilou, in addition to Abby Cohen Smutny and Stephan Schill, they being former law clerks of mine--Abby worked with me ever since she came to the firm, up until the time I left and a little time thereafter. David Caron is one of the four co-editors and could not be here today, but he was very careful to say to me at some point, "This is not a liber amicorum. It is not a Festschrift You will not find my name anywhere except the page following a portrait of me, I think, which is a preface and just says this was put together in honor of my eightieth birthday last summer. They were determined to publish a real book, although it was done, obviously, for the reason indicated. I said then, I say again: I could not possibly be more honored than with the concept, publication, and presentation of this book.


It is now my great honor to introduce our 2016 Charles Brower Lecturer, Professor Gabrielle Kaufmann-Kohler. She follows in the distinguished tradition set in 2013, when we had at this podium V.V. Johnny Veeder of Essex Court Chambers; 2014, Sundaresh Menon, Chief Justice of Singapore; and last year, our very own Michael Reisman of the Yale Law School.

Gabrielle Kaufmann-Kohler is a partner at Levy Kaufmann-Kohler, a Geneva law firm, where she practices as an arbitrator in commercial, investment, and sports arbitration. She is also a professor of law at the University of Geneva, where she teaches international arbitration and private international law. She has acted in about two hundred international commercial and investment disputes, as of the time that this bio was prepared and she regularly ranks among the top ten arbitrators in the world.

She presided at the Court of Arbitration for Sports, Ad Hoc Division, for the Olympic Games. She is Honorary President of the Swiss Arbitration Association, was a member of the ICC International Court, the Board of the American Arbitration Association, and the International Council for Commercial Arbitration (ICCA). She has authored and edited many books and articles in the field of dispute settlement and headed several research projects financed by the Swiss National Research Fund in this area, focusing her research on the evolution of transnational arbitration in all parts of the world and on improving the efficiency of dispute resolution. She holds a summa cum laude Ph.D. from the University of Basle, a J.D. from the University of Geneva, and is admitted to the bars of Geneva and New York.

Now, Professor Kaufmann-Kohler has many admirers, and one of her greatest admirers wrote that it is imperative for me to note the following. The Global Arbitration Review, on the fourteenth of January of this year, published an analytical study which concluded that Professor Kaufmann-Kohler is the most influential arbitrator in investment treaty arbitrations in the world. I venture to say that the person who prompted me with this tip knows whereof he speaks. I would now give the floor to Professor Kaufmann-Kohler.


Lori, thank you so much for this kind introduction.

It is a distinguished privilege for me to give this Fourth Lecture in honor of Judge Brower.

It is also a pleasure to be back in Washington in the spring and to see so many familiar, friendly faces in the audience.

The organizers have asked me to speak about investment arbitration, and so I thought that, in these times of changes, this may be a good opportunity to reflect on the nature and the reasons for the changes. I will look at structural changes in the system of investment arbitration, not at changes in the substantive protections you found in more recent treaties. Essentially, when I speak of structural changes, I have in mind the investment court implemented in the EU-Canada Comprehensive Economic and Trade Agreement (CETA), the EU proposal for an investment court in the Transatlantic Trade and Investment Partnership (TTIP), and the various references in recent treaties to the possible creation of...

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