Proportionality in Investor-State Arbitration

Proportionality in Investor-State Arbitration – Young ICSID Holds Event in Paris

ICSID's network of young professionals, Young ICSID, examined proportionality in investor-State arbitration at a conference in Paris on September 18, 2017.

The event focused on the legal foundations of proportionality in both domestic and international law, and its potential relevance for the settlement of investor-State disputes. Particular attention was paid to the suitability of proportionality analysis in relation to expropriation clauses, the fair and equitable treatment standard and non-precluded measures clauses.

The panel included Dr. Gebhard Bücheler (Seven Summits Arbitration), Erica Stein (Dechert), Alexandra van der Meulen (Freshfields Bruckhaus Deringer) and Professor Stephan Schill (University of Amsterdam), and was moderated by ICSID Legal Counsel Francisco Abriani. The panelists drew upon the book "Proportionality in investor-State Arbitration" (OUP 2015), authored by Dr. Bücheler.

The panel also discussed the possibility of using systemic interpretation pursuant to Article 31(3)(c) of the Vienna Convention on the Law of Treaties in order to apply proportionality analysis generally, and in particular to import human rights norms into international investment law.

Following a review of arbitral awards, the panel commented on use of proportionality analysis and its potential role in addressing legitimacy concerns in investor-State arbitration.

Young ICSID was launched in November 2012 to encourage professional development for lawyers under age 45 interested in investor-State arbitration. It is also intended to provide a forum to discuss ideas and meet other professionals in the field. Since its inception in 2012, Young ICSID has received more than 800 enrolment applications from lawyers in all regions of the world.