Wilmer Cutler Pickering Hale and Dorr Special Counsel Professor Maxi Scherer has co-signed the International Bar Association (IBA) Subcommittee report on investment treaty arbitration. Professor Scherer serves as co-chair of the subcommittee and signed the report in conjunction with co-chair Caline Mouawad and former co-chairs Noiana Marigo and Patrick Pearsall.
The report—titled “Arbitrating Small Value Claims in Investment Arbitration”—examines the mechanism and strategies available to the parties to calibrate the time, effort, and financial resources mobilized and invested to arbitrate small value investment claims in a manner that is commensurate with the sums at stake.
Small value claims (defined as those under US$50 million or €50 million) in investment arbitration represent a sizeable percentage of investment cases—across arbitral institutions, industry sectors, and geographic regions. Small value claims in investment arbitration are not necessarily simpler or less complex than large value claims, but the sums at stake may militate in favor of a proportioned approach to resolving such cases.
The report examines these claims from three angles. First, empirical data from leading arbitral institutions in investment arbitration—ICSID, the PCA, and the SCC—shows that such claims constitute an important segment of the investment arbitration docket. Second, the report analyzes special procedures for arbitrating such claims that are already available to parties—in particular, in international investment agreements and the arbitration rules of various institutions. Third, the report highlights how parties may choose to incorporate various other procedural mechanisms into their arbitration and create a bespoke procedure designed to streamline their case and minimize the costs of arbitration.
Importantly, the report does not take a view on whether such claims are desirable or should be encouraged, but rather investigates the procedural tools available to facilitate a cost-effective resolution of such claims. Most, if not all, of these tools are available for all claims, irrespective of the amounts at stake, but they seem particularly relevant and potentially critical for smaller value claims.
Professor Maxi Scherer is based in WilmerHale’s London office and has extensive experience with arbitral practice in both civil and common law systems. She has been involved in more than 100 arbitrations as counsel and arbitrator, including at ICSID and other major arbitral institutions.
The full report—“Arbitrating Small Value Claims in Investment Arbitration”—is available to download from the IBA website.