Energy

• (1) The Ministry of Foreign Affairs of Japan hosted the Energy Charter Treaty Forum [PDF]in Tokyo on November 21. The forum was attended by nearly 100 people from energy-related firms, legal circles, academics, embassies, and journalists.
• (2) On behalf of the Ministry of Foreign Affairs, Mr. Tatsuo Sato, Deputy Director-General of the Economic Affairs Bureau [PDF], opened the Forum, followed by speeches from Mr. Nobuaki Ito, Deputy-Director General for International Trade Policy Bureau of the Ministry of Economy, Trade and Industry [PDF] and H.E. Urban Rusnák, Secretary General of the Energy Charter Secretariat [PDF].
• (3) The Forum focused on the Energy Charter Treaty (ECT), which is an important multilateral legal framework for trade, transit and investment in the energy sector. The Ministry held the Forum with an intention　to enhance energy security and also promote Japanese companies’ business activities abroad by helping them to deepen their understanding of how investment protection and investment arbitration work in the energy field.

(1) Session 1 “Investment Arbitration: the Role of the Institutions”

Chair: Ms. Noriko Yodogawa, Associate of Nishimura & Asahi

Panelist1: Ms. Annette Magnusson, Secretary General, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) (Presentation: [PDF])

(Ms. Magnusson made a presentation on the features and function of the Arbitration Institute of the SCC in comparison with those of the International Centre for Settlement of Investment Dispute (ICSID))

Panelist 2: Mr. Brooks W. Daly, Deputy Secretary-General, Permanent Court of Arbitration (PCA) (Presentation: [PDF])

(Mr. Daly outlined the role of the PCA and suggested criteria for states or companies to consider when choosing which arbitration court is best suitable for their cases. He also explained the procedure followed in the Yukos cases, which the PCA administered until the award was issued in July this year.)

Panelist 3: Mr. Alejandro Carballo, Legal Counsel, Energy Charter Secretariat (Presentation: [PDF])

(Mr. Carballo outlined the role of the Energy Charter Secretariat in dispute resolution. The Secretariat supports investors and Contracting Parties lawyers by providing access to the negotiating documents of the Treaty, summaries of known ECT awards, updating information on cases . The Secretariat is now drafting a commentary to the ECT.)

(2) Session 2: “Investment Arbitration: The Perspective of Practitioners” (Round Table Discussion)

Chair: Prof. Shotaro Hamamoto,

• Panelist 1: Ms. Yas Banifatemi, Partner, Shearman & Sterling LLP
• Panelist 2: Mr. Pedro Claros, Partner, Cuatrecasas Gonçalves Pereira LLP
• Panelist 3: Mr. Alejandro Escobar, Partner, Baker Bots LLP
• Panelist 4: Mr. Yasuhei Taniguchi, Professor Emeritus, Kyoto University

　(Moderated by Prof. Hamamoto, panelists actively exchanged views on issues such as the selection of arbitration courts or arbitrators, how to prepare for an investment arbitration, the costs involved, how to implement the award, transparency, etc.)

(3) Session 3: “Investment Arbitration: Particular Procedural Issues”

Chair: Prof. Yuka Fukunaga, Waseda University

Panelist 1: Ms. Yas Banifatemi, Partner, Shearman & Sterling LLP

(Ms. Banifatemi explained the current trend of “parallel procedures” in arbitration proceedings.)

Panelist 2: Mr. Naoki Iguchi, Partner, Nagashima Ohno & Tsunematsu (Presentation: [PDF])

(Mr. Iguchi described the definition, examples and usefulness of “Interim Measures.”)

Panelist 3: Ms. Tomoko Ishikawa, Associate Professor, Tsukuba University (Presentation: [PDF])

(Ms. Ishikawa outlined the “remedies” available in case of breach by the host country of the protections provided by the ECT.)

Panelist 4: Mr. Hiroyuki Tezuka, Partner, Nishimura & Asahi (Presentation: [PDF])

(Mr. Tezuka described the use of the IBA(International Bar Association) rules on the taking of evidence in ECT arbitrations).

(4) Session 4: “Investment Mediation and Conciliation under the Energy Charter Treaty”

Chair: Prof. Junji Nakagawa, University of Tokyo

Panelist 1: Ms. Mitsuru Claire Chino, Executive Manager, General Counsel and Executive Officer, Itochu Corporation

(Ms. Chino explained the usefulness of mediation and conciliation from the viewpoint of investors.)

Panelist 2: Ms. Anna Joubin-Bred, International Investment Lawyer, ex-Senior Legal Advisor of UNCTAD (Presentation: [PDF])

(Ms. Joubin-Bred described the differences between arbitration and mediation as means of investment dispute settlement. She also explained the IBA’s mediation rules and their implementation, providing some examples.)

Panelist 3: Mr. Nicholas Lingard, Senior Associate, Freshfields LLP (Presentation: [PDF])

(Mr. Lingard explained the usefulness of mediation and conciliation in dispute settlement negotiations, as well as the implementation of the settlement agreement.)

• (1) The Forum succeeded to share the experiences and expertise of leading professionals from arbitration organizations, legal community, corporations, and researchers. It helped participants to deepen their understanding on dispute settlement under the ECT and investment arbitration in general through the presentations and the active discussion.
• (2) The active discussion in the Q&A session showed that a number of Japanese companies have a growing interest in the investment arbitration mechanism.
• (3) The Forum provided an opportunity to underpin Japanese companies’ business activities abroad by promoting the understanding and usefulness of the ECT, including its investment protection and dispute settlement mechanism. It also fostered the networking among Japanese companies and panelists of the Forum who have abundant experiences on this field.