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GAR 100 - 12th Edition

Todd Weiler

05 April 2019

Acting on claims against Mexico, Egypt and Laos

Pending cases as counsel 5
Value of pending counsel work US$3.5 billion
Treaty cases 5
Third-party funded cases 0

Todd Weiler is an investment treaty arbitration specialist based in London, Ontario.

His background is in public policy and international trade. He worked as a trade policy analyst for the Canadian government before being lured away by Barry Appleton to assist on some of the earliest NAFTA cases against Canada.

Weiler founded a website devoted to NAFTA claims in 1999 and began acting on behalf of other law firms in an independent capacity. He is regarded as an authority on investment treaty law and still receives instructions despite the proliferation of firms with dedicated practices in this area.

He primarily serves as co-counsel or consulting counsel in treaty disputes, teaming up with other practitioners on a case-by-case basis. He also sits as an arbitrator and publishes widely in the field. He has edited more than a dozen books and authored more than 60 academic articles and book chapters. The Interpretation of International Investment Law, published in 2013, earned him a doctorate from the University of Michigan.

In 2006, he founded the annual Juris Conference on investment law and arbitration in Washington, DC. He continues to co-chair the event with Crowell & Moring’s Ian Laird. With Laird, he also co-founded and ran the popular website investmentclaims.com, which is now managed by Oxford University Press. He and Laird remain on the editorial board.

He is one of the co-founders of the Society of International Economic Law and was one of the four practitioners chosen by Thomas Wälde’s widow to ensure his legacy projects, OGEMID and TDM, would be maintained and grow.

Who uses him?

Weiler has acted in cases relating to Barbados, Costa Rica, Croatia, the Czech Republic, Egypt, Kenya, Laos, Mexico, Mongolia and Peru, as well as on a claim by indigenous tobacco producers against the United States. He has teamed with Debevoise & Plimpton, Vinson & Elkins, Dentons and Fasken Martineau.

Weiler also acts for non-disputing parties in investor-state cases. He represented the Native American Quechan Nation, which was accorded a privileged position in a NAFTA dispute between Glamis Gold and the US over Quechan traditional lands. He was also retained by Latin American victims of the notorious Allen Stanford Ponzi scheme in treaty claims against the United States.

Another client was an international NGO that helped Uruguay to fend off an ICSID claim by Phillip Morris over the state’s tobacco-packaging legislation.

Track record

One of his biggest successes came in Siag & Vecchi v Egypt, which produced a US$132 million ICSID award for the claimant in 2009. Weiler, who acted for Siag after a referral from a previous client, auditioned law firms on the businessman’s behalf. After settling on a team from King & Spalding, he continued to advise in the background all the way through to the final award.

Weiler was also part of the team that won the first damages award against Canada in SD Myers v Canada, in which the tribunal awarded damages not only for harm caused to the investment in Canadian territory, but also for losses the investor suffered in the US.

In an early NAFTA case, Pope & Talbot v Canada, Weiler (with Ian Laird) developed a three-part test on “national treatment” that has since become the starting point for analysis of that issue by investment arbitration tribunals (although their client eventually lost on that point).

Recent events

Weiler suffered a defeat for a group of US real estate investors who had brought a US$100 million DR-CAFTA claim against Costa Rica. The tribunal hearing the arbitration ruled that measures taken by state authorities to protect wetlands and forests were not arbitrary or in breach of the trade agreement. Weiler had been working alongside Vinson & Elkins on that matter.

Weiler continues to represent US motorcycle manufacturer Vento in its NAFTA claim against Mexico, which was filed in 2017.The case concerns the imposition of a mandatory customs duty on imported bikes after Mexican authorities concluded they were made in China rather than the US. He has teamed with Mexican firm Aguilar & Loera in the case.

The Canadian also continues to advise Sanum Investments and Lao Holdings – two gaming companies owned by US businessman John Baldwin – in a billion-dollar dispute over a casino in Laos, which has been playing out on several fronts.

In late 2017, he helped Baldwin’s companies win permission to revive a pair of BIT claims against Laos on the ground that the state had materially breached a settlement agreement. He is representing the same companies in two additional BIT claims concerning Laos’ conduct in the wake of the settlement. He is working with Dallas firm Lackey Hershman on those cases, following the withdrawal of Debevoise & Plimpton.

Weiler is also working with Dentons for a US-based family who are bringing an ICSID claim, filed in 2016, against Egypt over investments in a cotton venture. Thirteen years previously, members of the same family had another claim against Egypt at the centre dismissed on nationality grounds. After arguing in his aforementioned book, Interpretation of International Investment Law, that historical analysis should be a fundamental element of treaty interpretation, Weiler says he has, “putting my money where my mouth is,” commenced a PhD in history at the University of Western Ontario.

He says he is “currently conducting research on my dissertation which, unsurprisingly, is about the history of international investment law.”

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