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Young ICCA Mentoring Programme: Mentoring group presents the results of their year-long research on the Future of Intra-EU Investment Disputes

By Dr. Anke Sessler, Partner, International Litigation and Arbitration, Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates, Frankfurt and Mr. Ravi Aswani, Barrister, Arbitrator & Mediator, 36 Stone, London

On 28 November 2018, at the offices of Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates in Frankfurt, Mentor Dr. Anke Sessler and Buddy Mr. Ravi Aswani were able to observe and participate in a seminar presented by their Mentees on the “Future of Intra-EU Investment Disputes in the aftermath of the decision of the ECJ in Achmea”.

In March 2018, Dr. Sessler and Mr. Aswani’s group of Mentees Dimitrios Papageorgiou, Elena-Michaela Georghe, Marine Koenig and Raquel Macedo decided on their topic of research: the decision of the ECJ in Achmea and its finding of incompatibility between Intra-European Union BITs (Bilateral Investment Treaties) and European Union Law.

The Mentees conducted extensive research and discussion on the topic and the consequences that such a decision could bring to European investors and to pending investment arbitrations. The mentees received support from their Mentor and Buddy in the form of a meeting and regular conference calls and were in due course ready to present their findings.

The decision was made to present the results of their research in the form of a seminar, which took place on 28 November 2018. The event included a guest speaker, Fábio Cavalcante, who stepped in for one of the mentees who was unfortunately unable to take part in the presentation.

The event was split into two sessions. In the first session, each of the Mentees explained a specific aspect of the main legal and practical consequences of the decision, touching on difficulties that are yet to be resolved, with particular focus on the available dispute resolution methods to which an investor affected by the decision could now resort. The second part of the event was dedicated to a lively and very enjoyable Oxford-style debate in which two Mentees advanced a positive answer to the question “Did the ECJ get it right?”, while the other two argued the contrary opinion.

As this was an Oxford-style debate, a vote was taken from the audience before and after the debate in order to assess which of the presentations had changed more minds. Interestingly, despite the fact that by the end of the debate 77% of the audience considered that the ECJ did not get it right, the Mentees advancing the opposite view (i.e. that the ECJ did get it right) won the debate as they were able to change the mind of 10% of the audience towards their view.

Putting aside the result of the debate, all participants agreed that the experience had been hard work but at the same time hugely enjoyable and rewarding. One of the Mentees, Ms. Raquel Macedo, Associate at De Berti Jacchia in Milan, reflected: “I could not have expected a better outcome of the evening. It is great to see what we can achieve when we truly dedicate ourselves to something. I am grateful to the Programme because I am not sure if – in different circumstances – I would have been able to be a part of such an international group of young practitioners, not to mention the opportunity to be in touch with and receive advice from such experienced professionals in the field as our Buddy and our Mentor.”

In the opinion of Mr. Fábio Cavalcante, LLM Candidate at the Humboldt-University in Berlin: “It was a great opportunity to discuss a case in the field of investment law that might also give rise to consequences to international commercial arbitration, mainly as to the issue of how arbitrators should refrain from political influences and how to reach consistency in the decision-making process.”

The Mentees will continue their research and, given the continued high level of interest in the topic, they intend to present updated results at a second similar event that is scheduled to take place in early 2019 in Milan.

The Mentees would like to put on record their appreciation for and gratitude to ICCA for allowing them this unique and valuable opportunity to collaborate across borders and across generations. They would also like to thank Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates for hosting the event, which included a post-event reception.

As Mentor and Buddy, Dr. Sessler and Mr. Aswani would like to put on record their admiration of the very high quality of the presentation and the debate which they experienced first-hand having attended the Seminar.  It was clear that the Mentees had put a huge amount of work into their event and Dr. Sessler and Mr. Aswani found they had to sometimes remind themselves that the session was being conducted by the Mentees (relatively junior practitioners with many other professional commitments) and not by senior and more experienced practitioners!

One of the special things about the Young ICCA Mentoring Programme is that it gives the mentees the freedom to select, as a group, topics or activities that they believe will be most beneficial to their career development.  As this group’s Mentor and Buddy, Dr. Sessler and Mr. Aswani found it rewarding to see the results of their Mentees’ hard work on a project they chose.

The group would encourage other groups in the Mentoring Programme to try something similar, and also to share their results for the benefit of the entire Mentoring Programme. The Mentoring Programme is a wonderful arrangement that provides benefits to all participants (mentor, buddy and mentees). The Mentoring Programme celebrates so many positive features of the international arbitration community, in particular it facilitates a dialogue between more experienced practitioners and those new to the profession and creates an environment for the exchange of skills, knowledge and best practices. Having spent so much time together as a group now, this Mentoring group are very confident that they will remain friends and colleagues long after this cycle of the Mentoring Programme comes to an end next year. This element of fraternity and friendship is something they all value just as much as the other benefits the Mentoring Programme affords participants.