Recognizing its often esoteric guise, Professor van den Berg described investment arbitration as a "somewhat mysterious" topic. Simply put, investment arbitration occurs when investors and host states enter into a two-party or multi-party investment treaty and agree to resolve any disputes through arbitration. The real question, however, according to van den Berg, is whether there are a sufficient number of qualified investment arbitrators in the field.
Van den Berg described competent investment arbitrators as displaying certain essential characteristics, such as the need to have "knowledge of investment law, experience in arbitration proceedings, be impartial and available, sensitive to economic, social and cultural differences, be able to deal with facts and numbers, understand that arbitration is a service industry, be in good health, have diplomatic and case management skills and speak at least one foreign language."
While the selection of arbitrators is a topic seldom deliberated, Van den Berg emphasized the importance of selecting qualified investment arbitrators, because their selection affects the field.
"If investment arbitrators do not carry out their job professionally, efficiently, cost-effectively and according to due process, then the reputation of investment arbitration generally suffers, and credibility is challenged," he said. "The problem is that there are not enough knowledgeable and experienced investment arbitrators. Young lawyers have the skills and most of the qualifications, but not yet the experience. I suggest formal training of investment arbitrators and appropriate guidance by experienced arbitrary institutions." The University of Miami School of Law is doing just that by encouraging young arbitrators to acquire experience through relevant field research, learning from internationally renowned faculty as well as through a partnership with the Young International Council for International Arbitration. Through its Miami Law/Young ICCA scholarship, the council awards a scholarship to a top Young ICCA member to attend Miami Law's one-year postgraduate LL.M. program in International Arbitration.
"As professor van den Berg mentioned, education and training in alternative dispute resolution, particularly in a unique field like investment arbitration, is essential in preparing our students to become leading practitioners," said Jessica Carvalho Morris, director of the International Graduate Law Programs, which she said provides students with a unique educational opportunity to acquire specialized expertise in arbitration.
Nikolaos Tsolakidis, a German lawyer and Fulbright Scholar in the International Arbitration LL.M. program, came to Miami to develop his doctoral thesis on arbitration and found professor van den Berg's lecture particularly engaging.
"To hear him speak about this field of public international law and international commercial law when I'm writing about it helps to deepen my understanding," Tsolakidis said. "Professor van den Berg has substantive knowledge in this field and it is very interesting to get an inside view from a practicing arbitrator."
In his closing remarks, van den Berg left the attendees and young arbitrators in the audience with a few encouraging words, saying that despite the challenges, he is "hopeful for the future."
Professor van den Berg Demystifies Investment Arbitrators
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