Ben Sanderson
Ben Sanderson has worked as a partner in the international arbitration group in the London office of Kirkland & Ellis and now works at DLA Piper. He has represented clients across a range of industries, including the energy, mining and technology sectors. His practice focuses, in particular, on high-value international commercial arbitrations - both institutional and ad hoc - and bilateral investment treaty claims.
Practice Area
Panel
- Contributing Author
Education
- St Catherine's College, Oxford (first-class honours)
- College of Law: LPC (distinction)
2 Contributions by Ben Sanderson
PRACTICE NOTES
Intra‑EU investment arbitration post-Achmea: EU law conflict, Member State terminations, Energy Charter Treaty issues and chronology (Archived)
ARCHIVED: This Practice Note has been archived and is not maintained.
Practice Note: Intra-EU investment disputes—an introduction
This overview may interest practitioners. Investor reliance on intra-EU bilateral investment treaties (BITs) has provoked substantial debate in recent years. That discussion reveals a tension between rights and protections derived from EU law and those contained in BITs concluded between Member States. This Practice Note sets out the key arbitration developments in this important sphere. A number of European institutions—most notably the European Commission and the European Court of Justice (ECJ)—have maintained that intra-EU BITs are incompatible with EU law. Unsurprisingly, these concerns have received limited backing within the arbitration community so far. Nevertheless, following the Slovakia v Achmea decision (see below) and the declarations issued by all EU Member States in January 2019 to bring intra-EU BITs to an end (see below), the stance of the European institutions has carried the political day, and disputes arising under intra-EU BITs—at least in their present form—are likely to fade away...
Arbitration
PRACTICE NOTES
MFN clauses in investor-state arbitration: importing dispute settlement provisions, the split in case law, and practical limits
What is a most favoured nation clause?
A ‘most favoured nation’ (MFN) clause typically appears in investment treaties and sets a baseline of treatment: the host state must not accord foreign investors treatment less favourable than that offered to investors protected under any other treaty. Absent an MFN clause, each party to a bilateral investment treaty (BIT) may lawfully apply differing economic treatment to investors from separate jurisdictions. The function of an MFN clause is to align and harmonise the protections available to overseas investors across all BITs concluded by the host state. Where the substantive safeguards granted in one BIT fall short of those the host has promised in a BIT with a different state, an investor may invoke the MFN clause to import the superior standard of protection from the more beneficial BIT, thereby supplanting the weaker wording in the BIT on which the claim rests. By way of illustration, an investor could attempt to bring in the more advantageous drafting of an expropriation provision contained in the BIT between the host state and a third country...
Arbitration
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