Athina Fouchard Papaesfstratiou, Counsel at Lazareff Le Bars, participated in a conference titled « Hot Topics in Investment Arbitration », organised by Africa International Legal Awareness (AILA). The conference took place in Lagos, Nigeria, on 2 November 2017, at the offices of the Lagos Court of Arbitration. Athina spoke on the subject of security for costs, focusing on the conditions under which a State may request that the Claimant post security for an eventual costs award against it, and the strategic considerations in requesting security for costs.
The conference focused on three main topics:
(i) new trends in international investment agreements in West Africa and more generally the role that Africa is called to play in the evolution of international investment law;
(ii) “money matters”: third party funding, security for costs and settlement agreements; and
(iii) illegality in investment arbitration: corruption, parallel criminal proceedings and illegally obtained evidence.
The first topic involved a discussion on the « modern » Nigerian BITS, such as the Nigeria-Morocco BIT, as well as on regional investment protection instruments containing novel provisions, such as the ECOWAS Investment Agreement, or instruments promulgated by COMESA, EAC and SADC. The discussion focused on BIT provisions which secure the legitimate interests of States while at the same time protect foreign investors, and the means to enhance the presence of African arbitrators in arbitrations involving African States.
The second topic focused on the various forms that third party funding may take, the need for regulation, as well as the interplay between third party funding and the possibility for respondent States to request security for costs. The case of RSM v St Lucia, in which the tribunal ordered security for costs was discussed in detail, as well as other cases in which the security for costs request was not successful in itself, but led to the Claimant disclosing information on its financial situation. Finally, several aspects regarding settlement agreements reached in the course of investment arbitration proceedings were discussed, such as the respective advantages of consent awards or discontinuation orders, and the question of the opposability of a settlement agreement to minority shareholders of the investor.
The third topic involved a discussion regarding the power of an international tribunal to order the suspension of criminal proceedings or prosecution against the investor pending the arbitration proceedings, as well as the consequences of the investor’s involvement in corrupt practices – distinguishing the hypothesis where corruption has stained the investment since its inception or took place at a later stage. Finally, the discussion focused on the handling, by international tribunals, of illegally acquired evidence.
Speakers at this very succesful conference were Ms Rukia Baruti, Mr Muhammad Dele Belgore SAN, Chief Christopher Bayo Ojo SAN, Ms Olusola Adegbonmire, Mr Babajide Ogundipe, Mr Bobby Banson, Mr Mjokoliwo, Ms Funke Adekoya SAN, Dr Chrispas Nyombi, Mr Bello Salihu, Mr Khrushchev Ekweme, Ms Obosa Akpata, Ms Athina Fouchard Papaefstratiou, Mr Diego B. Gosis, Mr Alastair Cambell, Ms Uché Ewelukwa Ofodile, Mr Robert Wheal and Dr Babatunde Ajibade SAN.
Author: Athina Fouchard Papaesfstratiou
For more information see: https://www.aila.org.uk/page-1806111