Mark A. Clodfelter

Partner - Washington, D.C.

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Mark Clodfelter has more than thirty-five years of private and public practice experience involving investor-State, State-to-State and commercial disputes before numerous international arbitration fora. He has acted as arbitrator and has represented a wide range of governmental and private parties before panels of the International Centre for Settlement of Investment Disputes (ICSID), the Permanent Court of Arbitration (PCA), the International Court of Arbitration (ICC), the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the American Arbitration Association (AAA) and under the UNCITRAL Arbitration Rules, as well as before the U.N. Compensation Commission and the Iran-U.S. Claims Tribunal.

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Education:

  • University of Michigan, M.A. in Political Science, 1972
  • University of Michigan Law School, J.D., 1972
  • University of Michigan, B.A. in Russian and East European Studies, 1970

Representative Experience

Arbitrator Appointments

  • Member of the Panel of Arbitrators of the International Centre for  Settlement of Investment Disputes (ICSID)
  • Member of the Panel of Arbitrators of the Kuala Lumpur Regional Centre for Arbitration
  • Member of the International Roster of Neutrals of the International Center on Dispute Resolution (ICDR)
  • Member of the Panel of Commercial Arbitrators of the American Arbitration Association (AAA)
  • Has served as an arbitrator in six investor-State arbitrations under bilateral investment treaties, including ICSID arbitrations under the Germany-Egypt, Switzerland-Romania and Spain-Egypt BITs, UNCITRAL arbitrations under the Italy-Romania and Czech-Cyprus BITs and an ad hoc/PCA arbitration under the China-Mongolia BIT 
  • Has served as an arbitrator in three international commercial arbitrations under the auspices of the International Center on Dispute Resolution (ICDR)
  • Has served as an arbitrator in numerous commercial arbitrations under the auspices of the American Arbitration Association (AAA)

Investor-State Treaty Arbitrations

  • Represents the Republic of India in an UNCITRAL Rules arbitration under Chapter Eight of the Japan-France comprehensive economic partnership agreement related to the taxation of automobile manufacturing.
  • Represents the Republic of India in an UNCITRAL Rules arbitration under the India-France investment promotion and protection treaty related to the port cargo-handling industry.
  • Represents Ukraine in an ICSID arbitration under the Ukraine-Netherlands investment promotion and protection treaty relating to the financial sector.
  • Provided representation to the Government of Canada as external reader in relation to claims noticed under Chapter 11 of NAFTA arising from the concession for the Ambassador Bridge between Detroit and Windsor, Ontario.
  • Represents the Republic of Ecuador in an UNCITRAL Rules arbitration under the Ecuador-United States bilateral investment treaty with respect to claims by a foreign pharmaceutical manufacturer challenging Ecuadorian court decisions rendered against it in a private litigation.
  • Represents the Republic of Ecuador in an UNCITRAL Rules arbitration under the Ecuador-United States bilateral investment treaty with respect to claims by a foreign oil producer challenging an Ecuadorian law establishing State participation in windfall oil profits resulting from an unforeseen rise in prices.
  • Represented the Slovak Republic in an UNCITRAL Rules arbitration under the Austria-Czech and Slovak investment promotion and protection treaty arising from changes in the Slovakian health insurance sector.
  • Represented the Slovak Republic in an UNCITRAL Rules arbitration under the Netherlands-Czech and Slovak investment encouragement and protection treaty arising from proposals to unitize the Slovakian health insurance sector.
  • Provided representation to the Republic of Korea as an external advisor in connection with investor-State arbitration and policy.
  • Provided representation to the Government of Canada as external reader in relation to claims noticed under Chapter 11 of NAFTA arising from the proposed development of a quarry in Ontario.
  • Represented the Slovak Republic in an UNCITRAL Rules arbitration under the Energy Charter Treaty arising from the regulation of natural gas distribution.
  • Represented the Republic of Ecuador in two ICSID cases brought by foreign oil producers to challenge an Ecuadorian law establishing State participation in windfall oil profits resulting from an unforeseen rise in prices.
  • Represented the Republic of Ecuador in the defense of claims in an arbitration administered by the Permanent Court of Arbitration brought by a major United States oil and gas company alleging that it suffered a denial of justice in violation of the Ecuador-United States bilateral investment treaty.
  • Represented Sempra Energy International in the defense of award enforcement efforts before ICSID annulment proceedings commenced by the Argentine Republic.
  • Represented the United States in an ICSID Additional Facility case brought by a construction subcontractor regarding national content requirements that allegedly violated the NAFTA Investment Chapter.
  • Represented the United States in ICSID Additional Facility proceedings under NAFTA that arose from allegations of denial of justice.
  • Represented the United States in ICSID Additional Facility proceedings under NAFTA brought by a commercial real estate development company alleging expropriation and denial of justice.
  • Represented the United States in four UNCITRAL Rules proceedings under NAFTA by Canadian lumber producers challenging the application of U.S. antidumping and countervailing duty laws to imported Canadian lumber.
  • Represented the United States in UNCITRAL Rules proceedings under NAFTA brought by Canadian cattle producers challenging the closure of the U.S.-Canada border to Canadian beef and cattle following a mad cow disease outbreak.
  • Represented the United States in UNCITRAL Rules proceedings under NAFTA initiated by a Canadian-owned mining company alleging a regulatory expropriation claim as a result of federal and California laws.
  • Represented the United States in UNCITRAL Rules proceedings under NAFTA defending against a Canadian tobacco company’s claim that the master tobacco settlement between forty-six United States states and major tobacco companies violated the expropriation and national treatment provisions of NAFTA.
  • Represented the United States in UNCITRAL Rules proceedings under NAFTA brought by a Canadian methanol company under NAFTA regarding legislation banning the use of a methanol-based gasoline additive.
  • Represented an oil field equipment supplier before the Iran-U.S. Claims Tribunal in an UNCITRAL Rules arbitration against Iran for expropriation of assets.
  • Represented U.S. principals of an architectural and engineering firm in the prosecution of two UNCITRAL Rules cases before the Iran-U.S. Claims Tribunal for the indirect expropriation of their ownership interests by Iran.
  • Represented individual investors before the Iran-U.S. Claims Tribunal in their UNCITRAL Rules arbitration claim that the Iranian government had expropriated interests in several business enterprises.
  • Represented the heirs to the owner of an office building in downtown Tehran in their Iran-U.S. Claims Tribunal arbitration under the UNCITRAL Rules for the expropriation of the building by Iran.

State-State Treaty Arbitrations

  • Represented the Republic of Ecuador in an arbitration under the State-to-State dispute resolution provisions of the Ecuador–U.S. bilateral investment treaty concerning the proper interpretation and application of the treaty.
  • Represented the United States government in its UNCITRAL Rules arbitration claim against India under the auspices of the Permanent Court of Arbitration relating to losses suffered by U.S. companies on a major power plant project in India recoverable under an investment guarantee agreement.
  • Represented the United States government in a claim under the rules of the Arbitration Institute of the Stockholm Chamber of Commerce against the Soviet Union and its successor, the Russian Federation, for the bugging of the new United States Embassy in Moscow and other breaches of agreements for the Embassy’s construction.
  • Represented the United States government before the Iran-U.S. Claims Tribunal in its defense against Iran’s multi-billion-dollar UNCITRAL Rules arbitration claim for compensation for weapons purchased by the Shah's government from private contractors but not delivered.
  • Represented the United States government before the Iran-U.S. Claims Tribunal in the defense of an UNCITRAL Rules arbitration claim by Iran that the United States violated obligations under the Algiers Accords to arrange for the transfer to Iran of Iranian non-military tangible properties subject to United States jurisdiction.
  • Represented the United States government in two Iran-U.S. Claims Tribunal cases against Iran under the UNCITRAL Rules regarding Iran’s failure to replenish a $500 million escrow account created to pay arbitral awards against it.
  • Represented the United States in a claim before the Iran-U.S. Claims Tribunal under the UNCITRAL Rules regarding Iran’s failure to maintain the confidentiality of classified weapons systems information.

International Commercial Arbitration Cases

  • Represented a consortium of American, Canadian, German, and Japanese companies in ICC Rules proceedings against Iran on claims for breach of a contract for the construction of a nationwide telecommunications system.
  • Represented an American energy investment company claiming royalties from a major Australian oil development company before an ad hoc tribunal in Australia.
  • Represented an American rice exporter in a claim filed under the arbitration rules of the Rice Millers Association for funds due under a contract with the Government of Iraq.
  • Represented a uniform manufacturing company against Iran in an UNCITRAL Rules case before the Iran-U.S. Claims Tribunal for the breach of a military supply contract.
  • Represented a U.S. computer services company in its UNCITRAL Rules arbitration against Iran before the Iran-U.S. Claims Tribunal arising out of contracts for computing and network services.
  • Represented a development company before the Iran-U.S. Claims Tribunal against Iran for breach of a project development contract.
  • Represented a major construction company in its claim against Iran in its UNCITRAL Rules arbitration arising out of contracts for the construction of a highway.
  • Represented a pharmaceutical company in its Iran-U.S. Claims Tribunal claims against Iran for breach of contract under the UNCITRAL Rules.
  • Author, “Written Proceedings in International Investment Arbitration” in Litigating International Investment Disputes: A Practitioner’s Guide, C. Giorgetti ed., Brill Nijhoff (2014).
  • Author, “Do States Have a Duty to Cooperate in the Interpretation of Investment Treaties?” Proceedings of the Annual Meeting (American Society of International Law) 108 (2014): 188–190. 
  • Author, “The Future Direction of Investment Agreements in the European Union,” Santa Clara Journal of International Law, Vol. 12 No. 1 (2014).
  • Co-Author, “National Security And Foreign Government Ownership Restrictions On Foreign Investment: Predictability For Investors At The National Level” (with Francesca Guerrero) in Sovereign Investment: Concerns and Policy Reactions, K. Sauvant, L. Sachs and W. Schmit Jongbloed, eds. (2012).
  • Author, “The Adaptation of States to the Changing World of Investment Protection Through Model BITs,” ICSID Review – Foreign Investment Law Journal, Vol. 24 No. 1 (Spring 2009).
  • Author, “U.S. State Department Participation in International Economic Dispute Resolution,” 42 South Texas Law Review, 1273 (2001).
  • Rapporteur, The People's Republic of China and ICSID: Considerations for Prospective Membership, U.N. Centre on Transnational Corporations, TNC No. 86-129, 1986.

Honors

  • Named repeatedly by Washingtonian magazine as one of Washington D.C.’s top international lawyers
  • Award for Outstanding Performance by an International Law Office from the American Bar Association International Law and Practice Section
  • Former member of the Senior Executive Service and recipient of the Presidential Rank Award for Meritorious Service

Involvement

  • White House Fellow, serving as a special assistant to the Under Secretary of State for Political Affairs
  • Participant in the European Communities Visitors Program
  • Moderator, “Recent Developments in Investment Arbitrations,” 5th Investment Treaty Arbitration Conference, Prague, October 20, 2015.
  • Speaker, “Do States Have a Duty To Cooperate in the Interpretation of Investment Treaties?”, panel on “Paradigmatic Changes In the Settlement of International Disputes," ASIL 108th Annual Meeting, Washington, D.C., April 10, 2014.
  • Speaker, “The EU’s New Hesitation about Investor-State Arbitration,” Georgetown Law Center Conference on “Current Issues in Investor-State Arbitration,” Washington, D.C., February 11, 2014.
  • Speaker, "Shareholder Claims Under NAFTA,” Joint IAI-CIDS-UNCITRAL conference on “Concurrent Proceedings in Investment Disputes: Treaty Arbitrations Brought by Shareholders,” Paris, November 22, 2013.
  • Panelist, Santa Clara University School of Law conference on "The Law and Politics of Foreign Investment,” Santa Clara, California, February 1, 2013.
  • Speaker, "Recent and Common Problems in ISDS," OAS-UNCTAD Advanced Training Course On Managing Investment Disputes, Quito, Ecuador, December 5, 2012.
  • Speaker, “Intersections of Human Rights Principles and Investor-State Dispute Resolution,” 11th Annual Harvard Human Rights Journal Symposium, Human Rights and the Fragmentation of International Law, Cambridge, Mass., April 6, 2012.
  • Expert, Forum on the Establishment of the Appeal Body in the FTAs Approved By Governments of the Region and the United States, OAS-Embassy of Honduras-Embassy of Mexico, Washington, D.C., March 29, 2012.
  • Speaker, “The Use of Arbitral Mechanisms in Times of Crisis-Lessons from the Past: The Iran-US Claims Tribunal,” Institute for Transnational Arbitration–American Society of International Law Joint Conference, Arbitration in Times of Crisis, Washington, D.C., March 28, 2012.
  • Panelist, “Procedural Devices for Early Resolution-Success or Failure?,” Sixth Annual Investment Treaty Arbitration Conference: A Debate and Discussion–NAFTA, CAFTA and Beyond?: Investment Protection in the Americas, Washington, D.C., March 27, 2012.
  • Panelist, “Rebalancing the Investment Arbitration Regime: Implications for International Commercial Arbitration,” Columbia University Arbitration Day, “Arbitrating with a Sovereign: Issues in Commercial and Investment Arbitration,” New York, March 23, 2012.
  • Speaker, “Promoting the Use of ADR in Investor-State Treaty Disputes,” Law, Justice and Development Week 2011–Innovation and Empowerment for Development, World Bank Group, Washington D.C., November 15, 2011.
  • Speaker, “How Can BITs Balance Sustainable Development Goals with Investment Protection?,” 40th Annual Conference-Culture and Innovation in International Law, Canadian Council on International Law, Ottawa, November 4, 2011.
  • Speaker, “The Absence of Proper Notification of the Existence of a Dispute or the Non-Observance of the Cooling-Off Period:  Do They Prevent the Perfection of Consent to Arbitrate?,” Fourth Annual Seminar on International Arbitration, Procuraduría General del Estado, Republic of Ecuador, Quito, October 5, 2011.
  • Speaker, "Fair And Equitable" and "Expropriation," APEC-UNCTAD-ProInversion Intensive Training Course on International Investment Agreements in the APEC Region, Lima, Peru, March 7-11, 2011. 
  • Speaker, "Jurisdiction of ICSID Tribunals" and "National Treatment," OAS-UNCTAD Advanced Training Course On Managing Investment Disputes For Latin American Countries, Bogota, Colombia, December 1, 2010.
  • Panelist, "Factors that Inhibit Amicable Settlement of Disputes," APEC-USAID-UNCTAD Workshop on Dispute Prevention and Preparedness, Washington, D.C., July 28, 2010.
  • Speaker, “Fair And Equitable Treatment and the Customary International Law Minimum Standard of Treatment,” 2010 ABA International Spring Meeting session on Analyzing Legitimate Expectations in the Context of Fair and Equitable Treatment Claims: Does the Glamis Gold Award Signal a Restoration in the Law of State Responsibility?, New York, April 16, 2010. 
  • Speaker, "Top Ten Developments In Investor-State Arbitration,” Georgetown Law Center Conference on Investment Arbitration In Latin America, Washington, D.C., April 14, 2010. 
  • Speaker, “The Fundamental Challenges to the Use of ADR in Investor-State Treaty Disputes,” W&L Law School/UNCTAD Joint Symposium on International Investment and ADR: Preventing and Managing Investment Treaty Conflict, Lexington, Virginia, March 29, 2010. 
  • Expert commentator, “Key Issues in the Evolving System of International Investment Rules,” UNCTAD Ad Hoc Expert Group Meeting, Geneva, Switzerland, December 4, 2009.
  • Speaker, “The Adaptation of States to the Changing World of Investment Protection Through Model BITs,” 26th AAA/ICC/ICSID Joint Colloquium on International Arbitration on Adapting Arbitration To A Changing World, The World Bank, Washington, D.C., November 20, 2009. 
  • Guest Lecturer, “Jurisdictional and Procedural Issues in Investor-State Arbitration,” American University Washington School of Law course on Investor-State Dispute Settlement, Washington, D.C., November 2 and 9, 2009. 
  • Speaker, “Differing Paths In Attracting Foreign Investment,” 2009 ABA International Fall Meeting session on Speeding in Opposite Directions: A Survey of the Foreign Investment Landscape in Latin America, Miami, Florida, October 30, 2009. 
  • Speaker, "Procedural Aspects of Investor-State Arbitration" (with Dr. Alvaro Galindo), University of Miami School of Law International Arbitration Institute, First Peer Forum On Investor-State Dispute Settlement, Coral Gables, Florida, July 15-17, 2009. 
  • Panelist, “First Steps Toward an Latin American Advisory Facility on Investor-State Disputes,” UNCTAD Ad-hoc Expert Meeting on the Feasibility of an Advisory Facility on International Investment Law and Investor-State Disputes for Latin American Countries, Geneva, Switzerland, February 9, 2009. 
  • Speaker, “The Impact of Investment Treaties on the Regulatory Powers of the State,” Office of Attorney General Of Ecuador conference on International Arbitration And Administrative Law, Quito, Ecuador, December 1-2, 2008. 
  • Panelist, “Crucial Issues in Defending Investor-State Arbitration Claims” and “Compliance with ICSID Arbitral Awards,” APEC Workshop on International Investment Agreements, Washington, D.C., November 3, 2008. 
  • Speaker, “National Security and Predictability For Investors At The National Level,” Vale Columbia Center Third International Investment Conference, FDI by State-Controlled Entities: Do the Rules Need Changing?, Columbia University, New York, October 1-2, 2008. 
  • Speaker, “Arbitration Under the ICSID and UNCITRAL Rules: A Comparison,” and “Preparing to Defend A Case,” Organization of American States, Asociación Latino Americana de Integración and UNCTAD Advanced Training Course On Managing Investment Disputes, Montevideo, Uruguay, November 26-27, 2007. 
  • Speaker, “Conducting The Arbitration: Initiation of Claims and The Arbitral Process,” and “Preparing to Defend A Case,” and “The Arbitral Award Under the ICSID Convention,” Islamic Development Bank, Jordan Investment Board, UNCTAD, Training Session On International Investment Agreements And Investment Disputes for Member Countries of the Organization of the Islamic Conference, Amman, Jordan, October 27-28, 2007. 
  • Speaker, “New Developments in Investment Treaty Arbitration,” American University conference on Investment Arbitration in Latin America from the States' Perspective, Washington, D.C., October 24, 2007.
  • Panelist, "The NAFTA Experience in Investor-State Dispute Settlement for States and Transnational Corporations" at Columbia University, Inter-American Development Bank, UNCTAD conference on Investor-State Dispute Settlement: Emerging Issues and Challenges for Latin American Countries and Investors, Washington, D.C., October 11-12, 2007. 
  • Lecturer, "Investor-State Dispute Settlement: Recent Innovations in Treaty Practice and Analysis of Jurisprudence," at UNCTAD Advanced Seminar on International Investment Agreements for Indonesian Officials, Geneva, Switzerland, September 27, 2007. 
  • Panelist, "Issues in the Implementation of Best Practices" at UNCTAD Expert Meeting on Comparing Best Practices in Investment and Development, Geneva, Switzerland, September 24-25, 2007. 
  • Speaker, "Experience of States with Investor-State Dispute Resolution," and "National Treatment," at Organization of American States, ICSID, UNCTAD and Ministries of Economy and Finance and External Relations of Peru National Seminar and Specialized Training on Investor-State Disputes, Lima, Peru, May 22-24, 2007. 
  • Speaker, "National Treatment," "Fair and Equitable Treatment and Full Protection and Security," and "Innovations in State Practice and in ISDS Procedures," Asia-Pacific Economic Cooperation and UNCTAD seminar on The Impact of Recent Investor-State Disputes on the Negotiation of Bilateral Investment Treaties and Trade Agreements in the APEC Region, Manila, Philippines, April 13-14, 2007. 
  • Panelist-Moderator, "The Future of Inter-State Arbitration," Institute For Transnational Arbitration and American Society of International Law conference, March 28, 2007.
  • Speaker, "The Future of Investment Agreements," at Institute For Transnational Arbitration and University of California Boalt Hall School of Law colloquium on Investment Arbitration: Lessons From Practice, A Discussion Among Experts, Berkeley, California, January 12, 2007.
  • Faculty, Organization of American States, International Development Agency of Canada, Secretaría de Economía de México and UNCTAD Advanced Training Course On Managing Investment Disputes, Puebla, Mexico, October 11-20, 2006. 
  • Speaker, "National Treatment," Asia-Pacific Economic Cooperation, Secretaría de Economía de México and UNCTAD Regional Seminar on Investor State Dispute Settlement: Key Substantive and Procedural Issues, Mexico City, Mexico, October 9-10, 2006. 
  • Faculty, Organization of American States, International Development Agency of Canada and UNCTAD Advanced Seminar on Managing Investment Disputes, Washington, D.C., November 3-11, 2005. 
  • Speaker, "Third-Party Participation in Arbitration," at Institute For Transnational Arbitration and American Society Of International Law conference on Arbitration and the Involvement of Non-Parties: Transparency, Intervention and Appeal, Washington, D.C., March 30, 2005.
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