Young ICSID Profiles - Part Five
Young ICSID is pleased to share the fifth installment of its profiles of young professionals in the field of international investment law and dispute settlement. Each issue examines practical issues related to building a career and skill set from the perspective of young professionals from around the world.
In this issue, we had the pleasure of interviewing three state attorneys: Kimbeng Tah, Head of International Arbitration at The Gambia's Attorney General's Chambers & Ministry of Justice; Lorena Fatás Pérez, Attorney with Spain's State Attorney General; and Vanessa Rivas Plata Saldarriaga, President of Peru's Special Commission of Disputes of the Ministry of Economy and Finance.
What do you wish you had known about the role of a state attorney in investment disputes before you took on your position?
Kimbeng: When I started out as a state attorney in investment arbitration, I thought my role and its resulting impact would be strictly restricted to the resolution of investment disputes. With time, and particularly from a state perspective, I have come to learn that my work has as much of an impact on the process of formulating investment policy and facilitating foreign investment as it has on resolving disputes. I found that by ‘reverse engineering’ disputes I can better understand the events and circumstances leading to that particular dispute, which places me in a better position to advise on how to effectively formulate investment policies, regulations, and legislation. The way a state approaches a dispute will ultimately have an impact on how prospective investors view the attractiveness of that particular state. This has forever changed my perspective on the role of a state attorney in investment disputes and I wish I knew this when I just started.
Lorena: The role is not that different from the one a state attorney plays before the courts of the Kingdom of Spain. However, differences arise when it comes to “how” you play your role, particularly at hearings. Cross-examinations and oral submissions before arbitral tribunals and Spanish courts are nothing alike. For instance, at the Spanish courts, re-direct is not limited to the specific points raised by the counterparty. Moreover, the fact that oral submissions may turn into a very constructive dialogue between the tribunal and the parties is something I have never experienced before the Spanish courts.
Vanessa: I wish I had known the immensity of the odyssey that lay before me. Yet, I could have hardly imagined, nor could I have understood back when I embarked on this position, how it would mark an irreversible milestone in my professional and personal journey. The role has become an extension of myself as a person, lending me the monumental opportunity to reinforce my vision of international law as a catalyst to preserve common values and a truly global rule of law that transcends boundaries, aiming at dispensing justice, fairness, and equality for all.
If I could turn back time—and leaving aside the undeniable fact that it is the hardest job I’ve ever had—I would accept the role again without hesitation. It has been an enormous privilege and the greatest honor to serve my country by leading its defense in investment disputes.
What is the most challenging and what is the most rewarding part of the role?
Kimbeng: The most challenging part of my role is the intensity of the process. In contrast to domestic litigation, international arbitration can be more onerous, with higher standards, voluminous discovery processes and, very often, daunting legal issues. As a state attorney from a country without an extensive investment arbitration history, I have had to constantly learn on the job, which makes an already intensive process even more arduous. However, this has been a blessing in disguise as the ability to practice alongside and against some of the brightest legal minds internationally has provided me with a rare opportunity to learn and improve on my own skills. The opportunity to work in this very diverse international field to my mind is one of the most rewarding parts of my job.
Lorena: Our main challenge is to be able to effectively present before the tribunal the facts-specific issues of each dispute. We mainly focus on Energy Charter Treaty disputes and even though these disputes might look analogous, that is not the case. Our team is usually smaller than that of the claimants, which are typically represented by firms with large international arbitration practices. We work very hard to be able to match such resources. However, going through these moments together with supportive colleagues, and in fact friends, makes it all worth it.
Vanessa: I can think of a unique moment that crystallizes both the biggest challenges and rewards of the role: the moment when the secretary of the tribunal notifies us of an award. While opening the hundred-page document and reading through its lines my heart starts beating fast, and a combination of despair and hope crosses through my mind. I have a sense of déjà vu as I am taken back to the long hours we devoted to the defense of the Republic.
It is an epic journey towards the final award: the late-evening meetings discussing strategies, the golden hour in which we receive a letter from an authority attaching the document we have been searching for months, and the long-awaited “Yes, I will” from a former official willing to testify. It is in these small victories that we find our reward for all the challenges we face, and where we can fully realize that our work really matters.
What makes a defense team strong?
Kimbeng: Three words come to mind: knowledge, experience, and diversity. Knowledge of the relevant laws and rules governing the various disputes is a crucial foundation to any strong defense team. Secondly, experience is indispensable. Investment arbitration is like competitive team sports in that a lot of the time it is about strategy, understanding the other side’s tactics as well as the arbitrator’s (umpire’s) tendencies. This is almost as important as the substance of the case. A defense team with more experience most often has the upper hand in strategy. Finally, a diverse team is a strong team. Diversity provides different perspectives on the issues, especially in teams where input is welcome from all members irrespective of seniority or experience. In my practice, I have found some of the most innovative approaches to a particular issue to come from the most unexpected members of the team. A team that thinks together, wins together.
Lorena: In my view, defense is all about self-awareness. Not only should you be aware of your strongest arguments, but also of your weaknesses to be effective.
Vanessa: In my view, a defense team’s major strength relies upon the sense of purpose of its members: the firm conviction that we all share about our role in the pursuit of a common goal. I feel inspired by the belief that what we do as a defense team is much greater than ourselves, and that sense of common purpose is our biggest strength.
A quote from the book “Checkmate” by Dorothy Dunnet describes it perfectly: “We are here. We will work together for what purpose seems to us right. We will work with calm, and with tolerance and, please God, with saving laughter.”
What considerations do you have to take into account that you might not think about as an attorney in the private sector?
Kimbeng: A private sector attorney acting for a client who is a state has the responsibility of advancing its client’s interests. However, I feel that the responsibility of a state attorney is even greater: I also have to take into consideration the greater interest of the public. I must constantly remind myself that my work has a direct impact, in one shape or form, on the men, women and children I encounter every day. The frequent proximity to and interaction with the public due to the nature of my work keeps this consideration on my mind each day.
Lorena: Consistency is always the starting point. Attorneys in the private sector have greater room to focus on how they can best represent their client's interests in each particular case. On the contrary, our strategy is bound by the principle of equality in the law. As civil servants, we must guarantee that a single proper interpretation of each rule is maintained in all our cases. Consistency is therefore the guarantee that every State must provide to ensure that no individual is privileged over another not only by the law, but also in the application of the law.
Vanessa: International investment law is much more than a field of law practice: it entails crossing borders, both physically and intellectually, and provides you with the opportunity to expand your conception of the world. Divergent histories, cultures, and legal systems produce occasionally divergent conclusions, so it is important to bear in mind that any measures at stake in an investment dispute represent a particular historic, economic, cultural, and social context.
To defend a country in an investment dispute, you must understand the country. It is never sufficient to understand how the law operates; it is essential to dig into the pages of its history, interpret its social sensitivities, and contextualize its current economic events. As a state attorney, one’s objective goes beyond determining a legal defense strategy to protect the interests of the Republic, it also encompasses a range of institutional and legal arrangements that must be put in place to ensure an effective and efficient response to ISDS cases (e.g., budgetary issues, communications guidelines with various governmental agencies and stakeholders, interaction with treaty partners), and to connect the law with overarching public policy objectives in various areas, such as public health, human rights, combat against corruption, and the protection of the environment.
On July 1, 2022, the new ICSID Rules came into effect. Choose one new provision you particularly like and explain why.
Kimbeng: I would point to Rule 53 granting tribunals express power to order Security for Costs and new provisions on costs in general. From a developing state perspective, investment disputes are quite costly to litigate. The new rules on allocation of costs, and the express power to grant Security for Costs will greatly give States the confidence to actively litigate disputes to their conclusion.
Lorena: Rule 63 on publication of orders and decisions is certainly one of the most awaited amendments. As state attorneys, our client is not only our country, but its people. The public deserves to keep track of investment disputes and the public resources involved in them.
Vanessa: I am particularly enthusiastic about Rule 68 of the new ICSID Rules, which regulates the submissions of a "non-disputing Treaty Party" on the interpretation of the treaty at issue in the dispute and upon which consent to arbitration is based.
Prior to my current role, I acted as the lead negotiator of various investment treaties negotiated by Peru, including the investment chapters of the Comprehensive and Progressive Trans-Pacific Partnership Agreement (CPTPP), Peru-Australia Free Trade Agreement, India-Peru Trade Agreement, and the modernization of the China-Peru Free Trade Agreement. One common area of agreement among treaty negotiators has always been the key importance of providing additional guidelines to tribunals on the scope, contours, and limitations of investment treaty provisions, to prevent any abuse of the ISDS system. In this respect, Rule 68 of the new ICSID Rules respond to a current discussion on areas to address the legitimacy of the ISDS system in accordance with the Vienna Convention on the Law of Treaties, with the ultimate objective of providing a fair, effective, and efficient method to resolve investment disputes.
What is your motto in life?
Kimbeng: My life motto is subsumed in the following self-explanatory quote by Roy T. Bennet, in his book The Light in the Heart: “Fear robs you of your freedom to make the right choice in life that can bridge the gap between where you are and where you want to be. On the other side of fear, lies freedom. If you want to grow, you need to be brave and take risks. If you're not uncomfortable, you're not growing.”
Lorena: Put your energy where your passion dwells and you will find your own true path.
Vanessa: I keep with me a hand-written letter that my father sent me when I was 11 years old. He was sent to Japan to conduct leading research in his field of work, and over the course of six months, he religiously sent letters that I found in the mailbox of our family’s house every Friday afternoon after I returned from school. Once he wrote in response to one of my biggest disappointments back then: “It is perfectly fine if you don’t get the best grade in a class; what it is important is that you learn the lessons that your professors are teaching you”.
My father’s words have remained throughout much of my adult life as a reminder of how my failures, setbacks, and mistakes, had a purpose to teach me meaningful lessons in life. And, most importantly, how not always obtaining what I expected was a gift—not a punishment—from the universe that defined who I am today.
The opinions expressed in this publication are those of the interviewees. They do not purport to reflect the opinions or views of ICSID, nor those of the organizations with which the interviewees are associated or employed.