issue #02, week 11. 15 March 2007
Prepared by TDM and Aloysius Gng (CEPMLP/Dundee)

TDM News Digest

provides a condensed overview of recent events of interest to the international arbitration community.

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Recent issues:

NEWS

ICC and UNCTAD to strengthen collaboration

United Nations, Geneva, 14 March 2007

During a meeting at the UNCTAD Commission on Investment, Technology and Related Financial Issues, ICC Secretary General Guy Sebban signaled the need for closer cooperation at all levels between the two organizations, especially to promote investment.

The UNCTAD address follows a meeting Mr Sebban held earlier this month with UN Secretary-General Ban Ki-moon, where ICC and the UN identified a number of priorities for more collaboration.

As part of their joint efforts to promote trade and investment, UNCTAD and ICC have produced investment guides for certain least-developed countries. Last year, two new editions were added to the collection, on Mali and Rwanda.

The Investment Advisory Council is part of another long-standing collaboration between ICC and UNCTAD that has provided an invaluable framework for high-level consultations between business and governments on investment matters, and in particular on how business and governments can work together to improve the capacity of least-developed countries to attract foreign direct investment. The IAC has met six times since its inaugural meeting at the Financing for Development Conference in Monterrey, Mexico in 2002. The most recent meeting took place in New York in September 2006, in parallel with the UN General Assembly.

Mr Sebban directed the attention of the UNCTAD Commission to the publication last year by ICC of a policy statement on the rising trend towards "investment protectionism," an issue requiring greater attention to help prevent government actions from impeding foreign investment.

"Our immediate goal is to work with governments to reverse the trend toward investment protectionism, before it spreads to other parts of the world and starts to affect global investment flows in a big way," Mr Sebban said.

"The promotion of international trade and investment is an integral component of the UN's broader mission to secure peace and stability. Our motto remains, 'world peace through world trade,'" Mr Sebban told UNCTAD.

http://www.iccwbo.org/iccbbjha/index.html

India, Trinidad and Tobago sign bilateral trade agreement

March 12, Hindu Times

India and Trinidad and Tobago today signed the Bilateral Investment Promotion and Protection Agreement (BIPPA) aimed at enhancing investment and technology flows between the two countries. The agreement was signed by Commerce and Industry Minister Kamal Nath and Minister of Trade and Industry of Trinidad and Tobago Kenneth Valley. The Agreement aims to enhance bilateral investment and technology flows between India and Trinidad and Tobago by creating favourable conditions for investors, an official statement said.

These include a mutually acceptable definition of investment and IPR, besides National Treatment and Most Favoured Nation Treatment and protection against expropriation. The agreement also provides elaborate dispute resolution mechanism, including negotiations, conciliation, domestic and international arbitration, to settle disputes between an investor and the host government or between the two governments.

Applicable for a period of 10 years, the agreement would thereafter be deemed to have been automatically extended unless either country gives a written notice to the other of its intention to terminate it, it said. Meanwhile, the Trinidad and Tobago Manufacturers Association and the Confederation of Indian Industry (CII) today signed a Memorandum of Understanding for co-operation between the two industry bodies for promoting, exploring and facilitating any possibility of manufacturing joint ventures.

http://www.hinduonnet.com/thehindu/holnus/002200703121961.htm

Argentina: Telefonica Seeks to Extend Tariff Suit vs ArgentinaGovernment

March 12, Serena Saitto, Dow Jones Newswires. Morning Start

BUENOS AIRES - Spain's Telefonica S.A. (TEF) is seeking another six- month suspension in a pending lawsuit it has filed against Argentina at a World Bank-sponsored international arbitration tribunal. With its case at the International Center for Settlement for International Disputes, Telefonica is seeking reimbursement for the $2.834 billion in damages it allegedly suffered after its Argentine unit's fixed line rates were frozen in 2002 immediately after the country's financial crisis. "We filed the extension request with ICSID on March 5," a Telefonica de Argentina's spokeswoman told Dow Jones Newswires Tuesday, confirming local press reports. Telefonica de Argentina is the Argentine unit of Telefonica.

…

This means that the commitment Telefonica de Argentina took last year with the government - as part of this agreement - to invest further in the technological development of the country is also suspended further.

http://news.morningstar.com/news/ViewNews.asp?article=/DJ/200703131135DOWJONESDJONLINE000413_univ.xml&Cat=Americas

Russia: Altimo accused of negative propaganda campaign

14 March 2007, Michael Harrison, The Independent

A Russian telecoms company which includes the former foreign secretary Douglas Hurd on its international advisory board was accused yesterday of conducting a negative propaganda campaign against one of its partners in documents filed with a New York court. Telenor, the state-owned Norwegian telecoms group, claims that Altimo, a company controlled by the Russian oligarch Mikhail Fridman, bribed journalists, whipped up nationalism and distorted the truth in an attempt to gain control of a mobile network in Ukraine which is jointly owned by the two companies.

The latest allegations, filed with the International Court of Arbitration in New York, are part of a long-running dispute between Telenor and Altimo, whose advisory board also features Sir Julian Horne-Smith, the former deputy chief executive of Vodafone, and Sir Roderick Lyne, the former British Ambassador to Moscow. In a separate action filed on Monday night, Telenor asked the US Federal District Court in New York to hold Altimo in contempt for seeking to frustrate the hearings before the arbitration court.

…

http://news.independent.co.uk/business/news/article2355974.ece

South Africa: Italian groups challenge Pretoria over BEE

FT.com, Luke Peterson and Alan Beattie [(free) FT subscribers]

March 9 2007

Three Italian mining companies have filed an international arbitration case against South Africa, saying the Pretoria government's positive racial discrimination laws violate investment treaties with other countries.

The case, which will be heard at the International Centre for Settlement of Investment Disputes (ICSID), housed at the World Bank in Washington, underlines the potential for businesses to litigate against governments in politically sensitive areas.

http://www.ft.com/cms/s/c9c99b84-cde2-11db-839d-000b5df10621,Authorised=false.html?_i_location=http%3A%2F%2Fnews.ft.com%2Fcms%2Fs%2Fc9c99b84-cde2-11db-839d-000b5df10621.html&_i_referer=

Singapore to offer tax incentives in bid to take Asia arbitration lead

01/03/2007, James Illman, Legalweek.com

Singapore has unveiled major tax breaks for law firms that act on international arbitrations as it vies with Hong Kong to become Asia's principal centre for dispute resolution.

Singapore's finance ministry announced the move on 15 February to allow a 50% tax exemption on firms' income on international arbitration work.

http://www.legalweek.com/Navigation/20/Articles/1012430/Singapore+to+offer+tax+incentives+in+bid+to+take+Asia+arbitration.html

Philippines: Airport defects bolster defense in damage suits

Manila Standard Today, 08 March 2007

The findings of two engineering firms engaged by the government confirming defects in the Terminal-3 of the Ninoy Aquino International Airport (Naia-3) has buttressed the state's defense against investment claims amounting to $1 billion pending before two international arbitral courts. Lawyer Eduardo Ceniza, counsel of Asia's Emerging Dragon Corp., said the Philippine legal panel has submitted statement of Richard Klenk, aviation and construction expert, to the Washington-based International Center for Settlement of Investment Disputes, revealing structural flaws to inferior materials used and poor workmanship.

…

Fraport AG, a member of the Piatco, the consortium that built the terminal, has a pending $425-million investment claim against the Philippines before ICSID while Piatco has a separate $565-million claim before the Singapore-based International Chamber of Commerce. The findings and recommendation of the engineering firms confirmed what the Asia's Emerging Dragons Corp. has been saying, echoing the earlier assessment made by internationally recognized experts who testified for the Philippines before the ICSID, Ceniza said.

…

http://www.manilastandardtoday.com/?page=police4_mar8_2007

Svenska v the Government of Lithuania and others the Court of Appeal dismissed the Government of Lithuania's appeal

01/03/2007, Michael Bools, Legalweek.com

In Svenska v the Government of Lithuania and others the Court of Appeal dismissed the Government of Lithuania's appeal from the decision of Justice Gloster, holding that it was subject to the jurisdiction of the court in proceedings to enforce an International Chamber of Commerce arbitration award against it.

http://www.legalweek.com/Articles/1012099/Commercial+Bar+Uncertain+ground.html

CIArb Elected as CMC Board Member for Third Time Running

March 2007

The Chartered Institute of Arbitrators (CIArb) has once again been elected, for the third time running, to be a Member of the Board on the Civil Mediation Council (CMC). The results, which were announced today, show that the CIArb gained an increased share of the vote to become one of the five Provider Members of the Board.

http://www.arbitrators.org/Institute/PR_CMC_Board.asp

Kenya: Court's 25 Percent Share Transfer Order May Derail Rift Valley Railways Concession

March 6, 2007

Barely three months after Rift Valley Railways took over the running of the Kenya-Uganda railway, the consortium faces the risk of going off the rails unless it complies with an order issued by the High Court sitting in Kampala. The court last Wednesday ordered its embattled chief executive Roy Puffet to transfer and register a 25 per cent shareholding in RVR Investments in the name of the Registrar of the Court, as an Independent Third Party, within 14 days or face the attachment of its assets.

According to the order issued by Justice Egonda Ntende, the registrar will hold the shares until a bitter shareholder dispute between Puffet, Sheltam Rail Company and its partners on the one hand, and Mirambo Holdings Ltd and Primefuels (Kenya) Ltd on the other, is resolved. The dispute is being heard by the Court of International Arbitration in London.

…

As the case was proceeding in Kampala, an arbitration mechanism built into the partnership agreement kicked in. This saw the partnership dispute move to the London Court of International Arbitration, where it is still going on. A binding confidentiality clause, however, stopped both Mirambo and Primefuels from responding publicly to the announcement by Sheltam. It was at this point that the court issued the now highly contentious order requiring the 25 per cent shares belonging to Mirambo Holdings and Primefuels Ltd to be held by the Registrar, a guarantee to ensure that the status quo is maintained until the arbitration is completed.

http://allafrica.com/stories/200703060584.html

Tanzania: Tribunal to permit NGO submission in Biwater-Tanzania water arbitration

March 2007, Investment Treaty News, Luke Peterson

In a ruling dated February 2, 2007, an ICSID tribunal has granted permission for a group of five non-governmental organizations to submit a written brief in an ongoing arbitration pitting a UK water services firm, Biwater Gauff (Tanzania) Ltd., against the Tanzanian Government. The ruling paves the way for the NGOs to submit a joint written submission no later than March 26, 2007, after which the parties to the arbitration will inform the tribunal whether they intend to address or respond to the written submission at a previously-scheduled substantive hearing slated for April 2007.

http://www.iisd.org/investment/itn/news.asp

UNCITRAL: Bahrain Elected to be Member of UNCITRAL

March 2007

Bahrain was officially elected by the asian group to become member of the United Nations Commission on International Trade Law (UNCITRAL). In response to the directives of foreign minister, Shaikh Khalid Bin Ahmed Bin Mohammed Al Khalifa, the ministry intensified its diplomatic contacts in coordination with bahrains permanent delegation in New York and held consultations with concerned bodies to ensure the Kingdom gain a six-year membership of UNCITRAL, foreign ministry's legal director, dr. Yousef Abdul Kareem, said.

http://english.bna.bh/?ID=56268

USA: Tronox arbitration award of $8.9 million before tax

February 22

Tronox Incorporated reported preliminary results for the fiscal fourth quarter and the fiscal year ended Dec. 31, 2006. Results of Operations ... This was partially offset by an arbitration award of $8.9 million before tax ($6.2 million before tax net gain after deducting 2006 legal costs associated with this matter) recognized in the fourth quarter of 2006, as the result of a decision by the London Court of International Arbitration in the company's claim against Kemira Oyj and a restructuring credit that resulted from updating our estimated projections, including timing of spend, of closure costs on the former Mobile, Ala., facility and Savannah, Ga., sulfate facility.

http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=ind_focus.story&STORY=/www/story/02-22-2007/0004532342&EDATE=THU+Feb+22+2007,+07:00+AM

Bangladesh: Govt wants local arbitration Niko

February 2007, South Asian Media Net

The government has agreed with Canadian company Niko Resources' proposal to settle the Tengratila blow-out compensation issue through arbitration, but it will ask the company to settle it in a local arbitration tribunal rather than in an international court. Sources in the Energy and Mineral Resources Division said that Petrobangla has already been asked to inform the company of the government's wish to settle the issue in a local arbitration tribunal. 'If Niko agrees, we are planning to form a tribunal with a number of former chief justices or justices who will deliver a solution of the current deadlock,' said a high official of the division. Niko has been requesting the government to settle the compensation issue through arbitration at the International Centre for Settlement of Investment Disputes, an institution of the World Bank group since August, 2006. The Canadian company has not paid compensation for the loss of gas and for environmental damage in two blow-outs in Tengratila (Chhatak) gas-field in January and June 2005, differing with the government's estimates that around 8.89 billion cubic feet of gas was burnt in the blow-outs that caused environmental damage to the tune of Tk 84 crore.

…

After the government dismissed Niko's claim, the company requested the government in August, 2006 to sign an agreement to go for arbitration at ICSID. The immediate past BNP-led government, however, in principle had decided not to go for any arbitration but had not informed the company of its attitude before it left office in October. It had also decided in principle not to pay Niko outstanding gas bills for gas from the Feni gas-field, worth around $22 million, until the company pays compensation for the Tengratila blow-outs.

…

http://www.southasianmedia.net/cnn.cfm?id=363413&category=Economy&Country=BANGLADESH

COUNSEL MOVES

Noah Rubins promoted to Counsel at Freshfields Bruckhaus Deringer LLP

March 2007

Noah Rubins, member of the international dispute resolution and public international law practice groups at Freshfields Bruckhaus Deringer in Paris, France, has been promoted to Counsel.

Before entering the law, Noah served as political attache in the U.S. Embassy in Moscow, Russia and founded a foreign policy think tank in Bishkek, Kyrgyzstan. He has published widely in the field of international dispute resolution, is a CEPMLP Honorary Lecturer (University of Dundee) and was appointed in 2003 as adjunct professor of international investment law at Georgetown Law Center. Noah speaks English, Russian, and French fluently and has worked in law offices in Istanbul, Paris, New York, Houston, and Washington DC.

Ms. Dyalá Jiménez, special Counsel for international arbitration Carey y Cía's Litigation Group

Before joining Carey y Cía, Ms. Jiménez worked for seven years at the International Court of Arbitration of the International Chamber of Commerce, first in Paris and, from 2004 to 2007, as its Director for Latin America based in Chile.

http://www.carey.cl/

DLA Piper expands Bangkok dispute resolution department with appointment of Suraphon Rittipongchusit and Supreedee Nimitkul

March 12

Bangkok - DLA Piper has appointed Suraphon Rittipongchusit and Supreedee Nimitkul as partners in the Bangkok office. Suraphon joins the growing dispute resolution department having had significant experience of commercial litigation, arbitration and other forms of dispute resolution matters. Supreedee is a corporate practitioner with over 20 years' experience advising on a wide range of corporate and commercial issues as well as providing advice to multinational corporations and leading Thai companies.

Suraphon has advised clients in arbitrations at the Thai Arbitration Institute and under International Chamber of Commerce (ICC) rules. He has experience of the banking and finance sectors and has also worked on business reorganizations, project finance matters and advised foreign investors in selecting investment vehicles. Suraphon also provides clients with high-level negotiations in relation to corporate acquisitions, joint ventures, and long-term supply, distribution and licensing agreements issues.

Supreedee's areas of expertise span an extremely diverse array of corporate and commercial issues. He advises clients across a wide range of industry sectors, however, he is particularly experienced in the banking and finance sector. Supreedee advises on project finance, joint ventures, mergers and acquisition, major business reorganizations and debt restructurings. He also handles dispute resolution matters under Thai and ICC arbitration rules. In addition, Supreedee assists clients looking to expand their franchise business in various sectors including automotive and entertainment.

http://www.dlapiper.com/global/media/detail.aspx?news=2355

Jeremy Sheldon joins Fulbright & Jaworski London office

05/03/2007, Georgina Stanley. Legalweek.com

Fulbright & Jaworski has bolstered its London office with the hire of Ashurst energy partner Jeremy Sheldon.... Fulbright's London office focuses on litigation and arbitration work as well as projects. Sheldon will work closely with London projects head Christopher Clement-Davies and David Moroney.

http://www.legalweek.com/

David McKie to strengthen DLA Piper's Litigation and Arbitration Group

March 2007

London - DLA Piper is pleased to announce the appointment of marine insurance specialist David McKie, who will join as a partner to further strengthen the Litigation and Arbitration Group's growing shipping team. David was a partner at niche insurance and re-insurance firm, Elborne Mitchell, where he had worked for 13 years.

David specialises in liability, energy, hull and cargo insurance, shipping and international trade dispute resolution, in arbitration, litigation and mediation. He is regularly retained by a wide variety of leading insurers, charterers, port authorities, classification societies, ship-owners and traders.

http://www.dlapiper.com/global/media/detail.aspx?news=2351

Fulbright Partner Mark Baker Appointed To Special CEDR Commission

March 8, 2007

Fulbright arbitration co-leader and partner Mark Baker has been appointed to serve as a member of International Dispute Resolution Centre (CEDR) Commission on Settlement in International Arbitration. Baker will be one of a group of leading international arbitrators, academics, mediators and counsel from different jurisdictions on the CEDR committee charged with investigating different approaches to settlement within the framework of international arbitration proceedings.

http://www.fulbright.com/index.cfm?fuseaction=news.detail&article_id=6196&site_id=286

Justin Michaelson appointed as partner of SJ Berwin's International Arbitration Practice

March 2007

SJ Berwin LLP is pleased to announce the appointment of Justin Michaelson as a partner to the international arbitration group, part of the commercial litigation and dispute resolution department. The appointment to the partnership is effective as at 1 May 2007. Justin joins us from Weil, Gotshal & Manges, having previously been at Clifford Chance. Justin qualified as a barrister and worked at SJ Berwin as an associate for two years.

Justin's appointment will increase the number of partners in our international arbitration practice to three, together with Tim Taylor and David Goldberg, and brings our practice in line with the leading international arbitration practices in London.

http://www.sjberwin.com/events/news/date/further_expansion_of_sj_berwins_international_arbitration_practice/2007_03_01.html

EVENTS / COURSES

JAMS: Open House at Expanded JAMS Dallas Resolution Center, March 20th

Please join us for an open house on Tuesday, March 20th, at 5:30 p.m. to celebrate JAMS expanded Dallas Resolution Center. In order to meet the growing demand for arbitration and mediation services in Dallas, JAMS is now offering larger arbitration and mediation rooms to meet the needs of clients with complex cases. The new facilities can comfortably accommodate the large numbers of parties inherent in multi-party mediation, complex arbitration, special mastering, and neutral evaluation matters.

http://www.jamsadr.com//FeatureFull.asp?Feature1ID=69

USA: International Arbitration 2007 - March 26 - 27, 2007

PLI New York Center -- New York, NY

This program focuses on the resolution of international business disputes through the international arbitration and mediation process. A panel of experts will share their knowledge and experience with you, including strategy, new trends, recent cases and practical tips that will help you navigate the unique issues this process raises.

http://www.pli.edu/product/program_detail.asp?ptid=511&stid=3&id=EN00000000032002

ICC: Summer Academy on International Dispute Resolution, 9 - 14 July

March 2007

Members of the Secretariat of the International Court of Arbitration will once again participate in the annual Summer Academy organized by the Heidelberg Center for International Dispute Resolution in Germany. This year's event will take place between 9 and 14 July. For more information see http://www.ipr.uni-heidelberg.de/center/

Diploma in International Commercial Arbitration 2007

http://www.arbitrators.org/Courses/DiplomaIntArb.asp

Dates

USA: 16th - 24th April 2007
UK: 8th - 16th September 2007

The course consists of nine days of lectures, tutorials and discussion workshops dealing with international arbitration law, practice and procedure. Since its launch in 1995, it has created more than 200 diplomates in many countries, including: Australia, Canada, England, France, Hong Kong, Ireland, Israel, Malaysia, New Zealand, Nigeria, Singapore, Scotland, Thailand and the USA.

The course has been designed to provide a thorough understanding of the practice and procedure of international commercial arbitration.

Who should do the course?

Practising lawyers, and other professionals who are familiar with legal reasoning and concepts are involved in arbitration (domestic or international) and who wish to increase their knowledge and understanding of international commercial arbitration. Fellows of the Chartered Institute of Arbitrators who have experience of domestic arbitration practice and wish to extend their knowledge to include international arbitration procedures.

What will you learn?

Amongst the topics to be covered are:

For all enquiries please call Karen Cheel on: +44 (0) 20 7421 7445 Email: laustin@arbitrators.org

Short overview of upcoming events

The above information is reproduced from the International Arbitration Planner by kind permission of Lovells (www.lovells.com and www.lovells.com/arbitration). More details on these and many other events can be found at www.arbitrationevents.com

Books / Publications

Legislating for alternative dispute resolution: A guide for government policy-makers and legal drafters (November 2006)

http://www.nadrac.gov.au/agd/WWW/disputeresolutionHome.nsf/Page/Publications_All_Publications_Legislating_for_alternative_dispute_resolution:_A_guide_for_government_policy-makers_and_legal_drafters

This report identifies the key issues policy-makers need to consider when incorporating ADR processes into new or existing legislation. It then addresses these issues by reviewing relevant statutes and cases and by providing a discussion of relevant policy issues. The report also recognises that legislation may not be necessary in every case. The guide begins by addressing this possibility and discussing alternatives to legislation.

While the primary focus of the report is on Commonwealth legislation, State and Territory policy-makers and legal drafters may also find the report helpful.

The document is available in MS Word and Acrobat Reader PDF format.