ICSID in the twenty-first century: an interview with Meg Kinnear.

Author:Caron, David
Position::International Centre for Settlement of Investment Disputes - International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Interview
 
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This discussion was convened at 2:30 p.m., Friday, March 26, 2010, by its moderator, David Caron of the University of California, Berkeley Law School, who introduced Meg Kinnear of the International Centre for Settlement of Investment Disputes. Below is a transcript of the session.

INTRODUCTORY REMARKS BY DAVID CARON *

Okay, today we have a treat. The title of this discussion is "ICSID in the Twenty-First Century: an Interview with Meg Kinnear." Let me point out that it's co-sponsored by the International Economic Law Interest Group and also by the Women in International Law Interest Group, and I think you will see questions from both aspects. Meg Kinnear, since last June, has been the Secretary-General of ICSID. She's had time to settle in, she's had time to shovel out of a terrible winter, and instead of me introducing Meg, we'll let her do that. Meg, I think we all know that you're a national of Canada, but in part from the aspect of a woman who has risen to this position, perhaps you can talk a little about your education in Canada, your mentoring, and the career path you went through to get to this point.

REMARKS BY MEG KINNEAR ([dagger])

Well, I am a national of Canada, born in Montreal, who went to law school at McGill, and then did a master's degree at the University of Virginia. At that time I thought I'd specialize in administrative law. I did a year there, and I thought Washington was an amazingly wonderful place, but I had promised to head back to Canada for a clerkship, so I said, "I'm going to go back for one year, and that's it." That was twenty-five years ago, so it tells you a little bit about career planning and luck.

I did an articling period in Ottawa and became very enamored with domestic litigation and advocacy. I then went to the Department of Justice of Canada, and it was a very exciting period because we were starting to work on what would become the Charter of Rights in Canada, much like the U.S. Bill of Rights. There was all sorts of interesting new work to be done--I got hooked on that and absolutely loved it.

We ended up working on one very big case in Toronto, which was about an hour away. The case, I was told, was going to settle within two to three months at the most. Nonetheless, I ended up in a trial that ultimately would last about two years. I had two young children who grew up through this, and I can remember how difficult that was.

That led me to a decision to leave litigation to be the executive assistant of the Deputy Minister of Justice. I can tell you I thought I would never leave domestic litigation, but ended up doing that, and all of a sudden I realized that there were so many interesting things I could learn--and I really did learn some amazing things. It's funny what you learn along the way that comes back later. One of the things in that job that was very interesting was learning how to answer press questions and things like that. I thought that would never be relevant again, but it turns out that it is!

So I learned all these things, and at the end of that, when I started wanting to go back to law, the Deputy Minister at the time said, "There's something called the Trade Law Bureau of Canada. I used to be there and you'd love it, it's fantastic!" And I thought, "Well, I don't know anything about trade law, but I'm willing to try it."

That led me to a very wonderful adventure, a place called JLT, the Trade Law Bureau of Canada. For ten years, we did Canada's legal work in both the WTO--when I first got there, it was almost all WTO--and something called NAFTA Chapter 11. Because I had a domestic litigation background, about two weeks after I walked in to JLT someone came running into my office and said, "There's this new thing called Chapter 11, do you want to do it?" I said, "Well, I don't know much about it...." And he replied, "It's okay, none of the WTO litigators want it because there are live witnesses, so take it!" So it was, "Let's make the new girl do it."

Little did I know this was actually a blessing in disguise. It started me on this incredible, wonderful world of investment arbitration, and I absolutely adored it. I've always said, quite frankly, that if I knew then what I know now, I would have done things so differently, but in fairness, we were all learning at that point. We often forget how little law there was at the time, so it was really a very exciting time to be involved in Chapter 11.

We, as everybody knows, got a few more cases in Canada. I think Canada now has about sixteen cases, which is surprising to many observers. And we were involved in some very exciting things, including NAFTA notes of interpretation, which was a unique period in NAFTA and for investment arbitration, and also involved in BIT negotiations, which is a fantastic perspective to have on investment obligations. You go from a tribunal, where everyone says, "Well, the comma's right here so that's what it means," to a BIT negotiation, where you realize very quickly the approach is, "You take Article 1, I'll take Article 3, we'll agree to Article 4 and we'll all go home." There's the whole imperative to get it finalized; you don't look at it under a microscope like you would before a tribunal.

In any event, I was very excited about Chapter 11, had wonderful colleagues and thought I would stay forever at JLT, but ended up one day seeing that ICSID was looking for a Secretary General. ICSID had made the decision, along with the World Bank, that the investment arbitration world was busy enough to justify a full-time, stand-alone Secretary General. For those of you who don't know, the Chief Legal Counsel of the World Bank previously had also worn the ICSID hat, and having done this job since June, I can tell you that this is more than a 24/7, full-time job. I really don't know how someone wore both of those hats, so my hat is off to them.

In any event, the World Bank advertised for candidates who were interested, and I was extremely fortunate and went to an interview, and was then asked back for a second interview with Mr. Zoellick. And I think I had one of the most interesting interviews I've ever had in my life, because Mr. Zoellick had been the US Trade Representative when we'd been working on the Notes of Interpretation (I'd been working on that project for the Canadian delegation).

So it was a wonderful conversation, and the next thing I knew, I was advised that I was fortunate enough to be selected in the process. At that point, your name goes forward to what's called the ICSID Administrative Council. All of the States have one seat on the Council, and you go through a process of voting. I don't think this is telling secrets out of school, but every weekend Antonio Parra would call me and would say, for example, "Well, you got Afghanistan and Romania, but we're still waiting for China." It was a funny situation for me, because there I was sitting in Ottawa getting reports about what was happening. Ultimately, we got to the two-thirds majority that was required, and I was fortunate enough to be offered the position, so I loaded up the car, sold the house, put my goods in storage, and here I am!

* President, American Society of International Law; C. William Maxeiner Distinguished Professor of Law, University of California, Berkeley Law School.

([dagger]) Secretary-General, International Centre for Settlement of Investment Disputes, World Bank.

DAVID CARON

Well, there's a lot there that I think we're going to have some questions about. Have you watched an arbitration since you've been Secretary General? Do you have an itch to be arbitrating, to be counsel? What are you feeling?

MEG KINNEAR

Yes, it's interesting. One of the practices that I started when I first got to ICSID was that when the arbitrations were in Washington and I was in town, I would go to the arbitration, introduce myself to the arbitrators and the parties, and ask their permission to stay at the hearing. I would stay as long as I could, normally about half an hour to an hour. I was very interested in seeing how things worked, but also wanted to make sure that I knew all the people involved well enough so that if they wanted to say something or had a comment, then at least they would know me well enough to pick up the phone. So that was part of it.

I think the other part was that I missed the being "on your feet" part of litigation. However, I don't miss staying up overnight, and I don't miss that anxious feeling in your stomach that you think will never go away, I don't miss those kinds of things. So occasionally I have that moment where I wish that I was on my feet with brilliant advocacy, but it passes pretty quickly. The job that I'm doing now is absolutely fabulous, I feel so blessed to be in this job. So those twangs are very, very minor.

DAVID CARON

You mentioned that this post was different in the past. From the very beginning with Aron Broches, it was one post--General Counsel of the World Bank and Secretary General of ICSID. You point to the plus side, which is that it is a 24/7 job, so it's good that you only have this one job. On the other hand, some people talk about Aron Broches partly thinking that it gave visibility for ICSID within the Bank, it gave a certain sense of some resources that should go to this area. Do you think anything is lost in this separation of the two posts?

MEG KINNEAR

I really don't think anything is lost, quite frankly. We are still fight across the street from the Bank, we are still formally one of the arms of the Bank, and I don't think that the relationship has changed in that respect or that there's any prejudice from this position being a full-time position. In fact, if anything, it probably gives it a little more prominence. One of the things that I've been very impressed with since I arrived at the World Bank is the extent to which ICSID is independent of the Bank. Now part of that is what we do. It's so different--we're not developing policy, and...

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