issue #14, week 27. 04 July 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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TDM
TDM Special: New Aspects of International Investment Law - 2004 Research Seminar by the Hague Academy of International Law
We are pleased to publish in this special issue on international investment law eight selected contributions originating in the 2004 Research Seminar by the Hague Academy of International Law. The full reports by Philippe Kahn and Thomas Wälde as well as a selection of the full-version papers have been published in New Aspects of International Investment Law / Les aspects nouveaux du droit des investissements internationaux, July 2007, ISBN-13: 978 90 04 15372 1.
The papers in this TDM Special provide shorter versions, as well as the preliminary version of Professor Wälde's report. We would like to thank the contributing authors for preparing the abridged versions of their articles:
- International Investment Law: An Overview of Key Concepts and Methodology
by T.W. Waelde, CEPMLP, University of Dundee - Counterclaims by Host States in Investment Treaty Arbitration
by H.E. Veenstra-Kjos, Amsterdam Center for International Law, University of Amsterdam - Recent Developments in Awarding Damages in Investor-State Arbitrations
by B. Sabahi, Georgetown University Law Center - Non Pecuniary Remedies: the Impact of ARSIWA in Investor-State Arbitration
by M. Endicott, University of Pennsylvania Law School - The State of Necessity as International Defense Raised By a State Undergoing a Financial
Crisis. A Case Study
by L.F. Castillo Argañarás, University of Buenos Aires - The Boundaries of Regulatory Expropriation in International Law
by A. Newcombe, University of Victoria Faculty of Law - Les Contrats B.O.T. A L'Epreuve du Nouveau Droit des Investissements Internationaux
by W. Ben Hamida, University of Bretagne-Sud - Les Principes directeurs de la Banque mondiale pour le traitement de l'investissement
étranger : Conclusion d'une etude
by P.M. Protopsaltis
TDM: Published articles
- The Denunciation of the ICSID Convention
- A letter (dated 12 December 2006) from President Rafael Correa to the Ecuadorian Attorney General. This letter was sent when Correa was elected but not yet in office
- La solicitud de arbitraje en el marco del Mecanismo Complementario del CIADI implica una renuncia a los recursos ante los tribunales estatales?
- Enclaves of Justice (speech by Jan Paulsson)
- Interpretation of Article 22 of the Venezuelan law for the promotion and protection of investments - Part II - (Chamber for Administrative and Political matters of the Supreme Court of Justice)
See https://www.transnational-dispute-management.com/journal-advance-publication.asp
Young-OGEMID virtual symposia
Young-OGEMID is a free listserv associated with our Transnational Dispute Management law journal for Students and (junior) Associates - you can apply for your free membership here: www.transnational-dispute-management.com/young-ogemid/
Call for contributions
- Special Issue on Mergers and Acquisitions (M&A) Disputes and International Arbitration
Editor: Beata Gessel-Kalinowska vel Kalisz; Reviewers: Cecilia Carrara & Luminita Popa - Special Issue on Sanctions and International Arbitration: Impact on Substantive and Procedural Issues
Editors: Ali Burney, Rinat Gareev, Kiran Nasir Gore, Prof. Joel Slawotsky, May Tai - Special Issue on National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty
Editors: John Gaffney, Richard Happ, Lucia Raimanova, Anna-Maria Tamminen, Catharine Titi - Special Issue on International Investment Arbitration - Environmental Protection and Climate Change Issues (Vol 4+)
Editors: Prof. Dr A F M Maniruzzaman, Kiran Nasir Gore, Prof. Dr Stephen Minas - Special Issue on The African Continental Free Trade Agreement (AfCFTA)
Editors: J. Chaisse, J. Górski, E. Laryea, M.M. Mbengue, and K. Olaoye
Recent issues:
- TDM 5 (2018) - Strategic Considerations in Energy Disputes
- TDM 6 (2018) - FDI Moot 2018
- TDM 5 (2018) - Regular issue
- TDM 4 (2018) - Time and Cost Issues in International Arbitration
- TDM 3 (2018) - Sir Elihu Lauterpacht QC
- TDM 2 (2018) - International Commercial and Investment Disputes in and with India
- TDM 1 (2018) - Regular issue
- TDM 5 (2017) - FDI Moot 2017
- TDM 4 (2017) - Comparative and International Perspectives on Mediation in Insolvency Matters
- TDM 3 (2017) - One Belt One Road (OBOR)
- TDM 2 (2017) - Non-Legal Adjudicators in National and International Disputes
- TDM 1 (2017) - Regular issue
- TDM 6 (2016) - FDI Moot 2016
- TDM 5 (2016) - Latin America (vol. 2)
- TDM 4 (2016) - Africa
- TDM 3 (2016) - Three Centuries of Arbitration for Peace
- TDM 2 (2016) - Latin America
- TDM 1 (2016) - CETA
- TDM 7 (2015) - FDI Moot 2015
- TDM 6 (2015) - Regular issue
- TDM 5 (2015) - Yukos Special - OGEL 5 (2015) - Yukos Special
- TDM 4 (2015) - ArbitralWomen/TDM: Dealing with Diversity in International Arbitration
- TDM 3 (2015) - Renewable Energy Disputes - OGEL 3 (2015) - Renewable Energy Disputes
- TDM 2 (2015) - Arbitration in the Middle East: Expectations and Challenges for the Future
- TDM 1 (2015) - The Pacific Rim and International Economic Law: Opportunities and Risks of the Pacific Century
- TDM 6 (2014) - Dispute Resolution from a Corporate Perspective
- TDM 5 (2014) - FDI Moot 2014
- TDM 4 (2014) - CILS - 8th Biennial Symposium on International Arbitration and Dispute Resolution
- TDM 3 (2014) - Regular issue
- TDM 2 (2014) - The New Frontiers of Cultural Law: Intangible Heritage Disputes
- TDM 1 (2014) - Reform of Investor-State Dispute Settlement: In Search of a Roadmap
- TDM 6 (2013) - FDI Moot 2013
- TDM 5 (2013) - Art and Heritage Disputes in International and Comparative Law
- TDM 4 (2013) - Ten Years of Transnational Dispute Management
- TDM 3 (2013) - Corruption and Arbitration
- TDM 2 (2013) - EU, Investment Treaties, and Investment Treaty Arbitration - Current Developments and Challenges
- TDM 1 (2013) - Aligning Human Rights and Investment Protection
- TDM 5 (2012) - Legal Issues in Tobacco Control
- A Liber Amicorum: Thomas Wδlde - Law Beyond Conventional Thought
- TDM 5 (2011) - Resolving International Business Disputes by ADR in Asia
- TDM 4 (2011) - Contingent Fees and Third Party Funding in Investment Arbitration Disputes
- TDM 3 (2011) - Intersections: Dissemblance or Convergence between International Trade and Investment Law
NEWS
Chevron says victim of unfair trial in Ecuador
July 2, http://www.alertnet.org/thenews/newsdesk/N02240195.htm
Oil major Chevron Corp. alleged irregularities in a $6 billion lawsuit that accuses it of polluting Ecuador's rainforest and will challenge any ruling against the U.S. firm, a top company lawyer said on Monday.
"The due process is not being respected in our case," Ricardo Veiga, Chevron's managing counsel for Latin America, told Reuters during a visit to Quito.
"We will not hesitate to go to international tribunals to review what we believe is an unfair trial and lack of due process in this country," he added.
Warning on Dundee involvement in Bulgaria
July 2, http://www.sofiaecho.com/article/warning-on-dundee-involvement-in-bulgaria/id_23434/catid_23
The Economy Ministry has taken a sideswipe at Djevdet Chakurov's Environment Ministry, saying that Environment's behaviour regarding the Dundee Precious Metals (DPM) projects could jeopardise investment in mining in Bulgaria and cause the country a loss of revenue.
At issue is an investment proposal involving Chelopech Mining, a local subsidiary of Canadian company Dundee. There has been a protracted delay by the Environment Ministry on issuing decisions on large-scale projects at Chelopech and Krumovgrad, in spite of Dundee winning court actions ordering the Environment Ministry to issue decisions. In early June, Dundee confirmed that it would seek a ruling against Bulgaria in the international court of arbitration, and said that it would approach the European Commission to intervene.
If Venezuela refused to honor arbitration, CITGO's assets could be seized
Published: Monday, July 02, 2007, Bylined to: Houston Chronicle
http://www.vheadline.com/readnews.asp?id=74221
ConocoPhillips and Exxon Mobil Corp. could hold a powerful card to make Venezuelan President Hugo Chavez bet his country's sizable American assets in the high-stakes nationalization of the Venezuelan oil industry, experts say.
The CITGO subsidiary of Venezuela's national oil company has five refineries in the US experts say could be targeted for seizure if a stalemate prompts one or both US oil majors to seek recompense through international arbitration.
Venezuela: ConocoPhillips and Venezuela Unable to Reach Migration Agreement; Compensation Negotiations Continue
June 26, http://www.conocophillips.com/newsroom/news_releases/2007+News+Releases/062607.htm
ConocoPhillips and the Venezuelan government were unable to reach agreement regarding ConocoPhillips' migration to an Empresa Mixta structure mandated by Venezuela decree law 5.200. Therefore, pursuant to the decree, Petróleos de Venezuela S.A. (PDVSA) or its affiliates will directly assume the activities associated with ConocoPhillips' interests in the Petrozuata and Hamaca heavy-oil ventures and the offshore Corocoro development project.
While negotiations are continuing between ConocoPhillips and Venezuelan authorities concerning appropriate compensation for the company's interests, the company expects to record a complete impairment of its entire interest in its oil projects in Venezuela of approximately $4.5 billion, before- and after-tax, in its second-quarter financial results. Although the company is hopeful that the negotiations will be successful, it has preserved all legal rights including international arbitration.
Prior to the expropriation of its interests, ConocoPhillips held a 50.1 percent interest in Petrozuata, a 40 percent interest in Hamaca, and a 32.5 percent interest in Corocoro. At December 31, 2006, ConocoPhillips had recorded 1,088 million barrels of oil equivalent of proved reserves related to Petrozuata and Hamaca, and first-quarter 2007 production from these two joint ventures, after application of disproportionate OPEC reductions imposed by the Venezuelan government, averaged 82,000 net barrels per day of crude oil. First-quarter 2007 net income attributable to ConocoPhillips' Venezuelan operations was $27 million.
Additional information is available in ConocoPhillips' filings with the U.S. Securities and Exchange Commission.
Vietnam: Decree to be enacted to pave way for foreign investment
June 29, http://english.vietnamnet.vn/biz/2007/06/712119/
The Ministry of Planning and Investment (MPI) is to promulgate a decree guiding the implementation of several of Vietnam's WTO commitments. This is the long-awaited document which is hoped will help settle the impediments in fulfilling WTO commitments in terms of investment, paving the way for the new investment flow into Vietnam.
The Common Investment Law and the decree guiding the implementation of the law both mention the list of conditional investment fields. However, investors cannot find information about the detailed conditions for every investment field there, and have to check for information under other specific laws. To date, the document which stipulates the detailed conditions for conditional investment fields has not been promulgated yet.
Fireman's Fund Insurance Company v. United Mexican States, ICSID Case No. ARB(AF)/02/1 (NAFTA). - Award, 17 July 2006
The tribunal (van den Berg, Olavarrieta and Lowenfeld) rejected FFIC's request to find that the Government of Mexico, through its acts and omissions, violated Article 1110 of the NAFTA by expropriating FFIC's investment in dollar-denominated debentures issued by GrupoFinanciero BanCrecer S.A. de CV. The Fireman's Fund final award (redacted version of award dated 17 July 2006) is available at http://ita.law.uvic.ca.
Pluris Energy Provides South America Corporate Update
http://www.oilvoice.com/Pluris_Energy_Provides_South_America_Corporate_Update/10034.htm
Pluris Energy commenced an arbitral action through the International Chamber of Commerce in Paris, France related to protecting its rights under the terms of the Share Purchase Agreement ("SPA") entered into between Pluris Energy and San Enrique on August 18, 2006.
Pluris Energy's Chairman & CEO, Mr. Sacha H. Spindler stated, "Although completion of the San Enrique acquisition has been delayed through injunctions imposed regarding San Enrique's Tierra del Fuego interests, we're taking the necessary steps to ensure that Pluris Energy's rights and interests in the acquisition of San Enrique are protected and that resolutions related to the issues at hand can be made in a time frame that fits within our scheduled South American acquisition and development objectives."
ABA: The Arbitrator's Disclosure Conundrum - Feedback on Draft Guidelines Requested
In 2006, Steve Yusem and Paul Dubow, co-chairs of the Arbitration Committee of the Dispute Resolution Section, established a Disclosure Subcommittee (Subcommittee) to formulate recommended arbitrator disclosure guidelines[1] to meet "potential or perceived partiality" disclosure requirements and standards. The Subcommittee is comprised of Kurt Dettman (Chair), Russel Murray, Cathy Shanks, Jim Stone, and Mike Timpane.
The reason for establishment of the Subcommittee was that a myriad of disclosure standards are being used around the country, some required by statute, some driven by court decisions, and some established by arbitration service providers. The Subcommittee's charge was to assess these varying standards and propose a "middle ground" for disclosure requirements. The challenge for the Subcommittee was to establish a reasonable balance between the duty to disclose facts and relationships that potentially impact arbitrator impartiality and the real world challenges facing arbitrators in trying to identify, evaluate, and disclose all relationships that, if left undisclosed, might later provide a basis for setting aside an arbitration award.
The Subcommittee prepared a recommended Disclosure Checklist, with accompanying Commentary, for arbitrators to use in identifying and disclosing relationships and circumstances that raise such "potential or perceived partiality" issues. The Commentary provides explanations and examples to help guide the user in working through the Checklist. The Checklist also provides definitions for terms used and a format for recalling and considering what information to disclose. Together, the Checklist and Commentary provide disclosure guidelines that may provide a "safe harbor" to those arbitrators who use them.
The Subcommittee presented its paper at the Section of Dispute Resolution Annual Conference in Washington, D.C., in late April, and also recommended it for adoption by the Arbitration Committee. In light of the positive response to the paper, the Arbitration Committee Co-chairs intend to present the paper to the Section's Council at the annual ABA Conference in August 2007.
In the meantime, however, the Disclosure Subcommittee welcomes comments and feedback on its Guidelines and Commentary, so that the paper as presented to the Section's Council will have the benefit of input from arbitration practitioners and providers. The Subcommittee has posted its paper on the Arbitration Committee's web site and will also send it to the Committee's distribution list. If you have comments or questions about the white paper, please send them via e-mail response to the Chair of the Subcommittee, Kurt Dettman, at kdettman@c-adr.com. The Subcommittee will take into account your comments in the paper presented to the Section Council in August.
The Subcommittee has also been working with Professor Mary Bedikian of the Michigan State University College of Law. Professor Bedikian has compiled a summary level list of disclosure requirements under various statutory standards[2] and as used by provider organizations such as the AAA and JAMS. Professor Bedikian welcomes comments on the disclosure listing. She can be contacted at bedik@law.msu.edu.
Footnotes
Herbert Smith launches study into how effectively and efficiently ADR can be used by in-house counsel
July 2, http://www.thelawyer.com/cgi-bin/item.cgi?id=126890&d=11&h=24&f=23
Herbert Smith has launched a study into how effectively and efficiently alternative dispute resolution (ADR) can be used by in-house counsel.
The study, which will take place over the summer and be published in the autumn, is probing general counsel on how they currently use ADR options such as mediation and what difficulties they have encountered.
Alex Oddy, a litigation and arbitration partner at the firm, said the research will suggest steps general counsel could take to structure their departments to focus more on ADR.
EVENTS
Specialised Arbitration & Advocacy Skills in International Oil & Gas Disputes
Annual CEPMLP Seminar exploring the legal and practical issues arising in the resolution of oil and gas disputes through commercial and investment arbitration
August 27-31, 2007 (provisional). The Old Course Hotel, St. Andrews, Scotland, UK
More information is available at the seminar website.
The CIArb's Continuing Commitment to Mediation - London Branch IVth Annual Mediation Seminar
http://www.arbitrators.org/Institute/PR_CIA034.asp
The art, science and practice of mediation have developed dramatically since the first of these seminars and, in addition, mediation is becoming more ingrained in the British way of life, whether in the commercial sector or otherwise (including the family, neighbourhood, community and other specialisms). Mediation is growing outside the UK with the latter, particularly the CIArb, taking a lead in spreading the message around Europe and elsewhere.
The CIArb London Branch is consequently very pleased to have held its IVth Annual Mediation Seminar on 20 June 2007.
ACICA/ACLA Joint Conference on International Commercial Arbitration - August 10
The objective of ACLA is to be, and to be recognised as, the primary professional association of in-house lawyers in Australia, providing an efficient and effective range of benefits and services which will advance members' professional development and standing and meet their individual needs.
The Conference showcases an impressive program accommodating both the theoretical underpinnings of international commercial arbitration as well as the practical application of international arbitration in Australia and our region.
More details at http://www.acica.org.au/news.html
Short overview of upcoming events
- 04 Jul 2007
Arbitrating Competition Law Issues: A Special ICC UK Working Session
S J Berwin , ICC United Kingdom , Addleshaw Goddard LLP
United Kingdom - 04 Jul 2007
Experts in International Arbitration - A European Perspective
Crown Office Chambers , PwC
United Kingdom - 09 - 12 Jul 2007
UNCITRAL Congress: Modern Law for Global Commerce
Austrian Arbitration Association
Austria - 09 - 14 Jul 2007
4th Summer Academy on International Dispute Resolution
Heidelberg Centre for International Dispute Resolution
Germany - 11 Jul 2007
West Tankers: Anti-Suit Injunctions to Protect Arbitration Agreements
BIICL
United Kingdom - 13 - 14 Jul 2007
The National Alternative Dispute Resolution Advisory Council (NADRAC) 3rd Research Forum
ACDC , NADRAC
Australia - 23 Jul 2007
How Final an Award? Review and Annulment of International Arbitral Awards
DCBAR
United States of America - 27 Jul 2007
Arbitrating in Brazil under the ICDR Rules and Administrative System
ICDR , CBar
Brazil - 10 Aug 2007
The Importance and Value of International Commercial Arbitration
ACICA
Australia - 18 - 19 Aug 2007
Chartered Institute of Arbitrators/SIArb International Entry Course 2007
SIArb
Singapore
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
MOVES / JOBS
John Gaffney joins Skadden, Arps, Slate, Meagher & Flom (UK) LLP
John Gaffney joined the International Arbitration Group of Skadden, Arps on July 2nd. He is based in their London office. John Gaffney has published widely in the area of international arbitration and is a member of various arbitration panels, including the CIETAC Panel of International Arbitrators, the WIPO Domain Name Panelist for the ".ie" domain, and the Panel of Arbitrators of the Law Society of Ireland. He is also a member of the Young International Arbitration Group of the London Court of Arbitration and a Young Practitioner member of the International Arbitration Institute, Paris.
George Burn Joins Salans Arbitration Team
Salans is delighted to welcome George Burn as Head of International Arbitration, London. George joins our highly regarded International Arbitration Practice Group. The Group has members across the entire Salans network and is based in Paris. George will lead its expansion into the UK.
George is an established international arbitration specialist and English qualified lawyer. Most of his experience comes from disputes in technical or infrastructure fields (such as energy, construction and engineering, mining, rail and shipping), though George has a secondary specialism in sports disputes.
He has worked under all the major arbitration rules, and is experienced in the conduct of the expanding field of treaty arbitration. George is active in the international arbitration community, most recently as a member of the ICC Task Force on Reducing Time and Costs in Arbitration.
Commenting on his move to Salans, George said, "I am proud to join Salans and its excellent arbitration team. I look forward to contributing to the team's long-term growth in London. These are exciting times in the practice of international arbitration. Joining Salans now represents a great opportunity, one I am very excited about."
CIArb: New Director Mike Owen to Drive Global Dispute Resolution Standards
http://www.arbitrators.org/Institute/PR_CIA031.asp
June 2007 - Mike Owen joins the Chartered Institute of Arbitrators (CIArb), as Director of Marketing, Membership and Training as the global demand for expert dispute resolvers grows.
In this new role, Mike's remit will include elevating the profile of the CIArb in new sectors, promoting the benefits and services offered by the organisation, enhancing communications and support to members and branches across the UK and internationally, as well as developing the education, professional training and e-learning support programmes.
BOOKS
New Aspects of International Investment Law / Les aspects nouveaux du droit des investissements internationaux
Edited by Kahn and Wälde. Published: July 2007. Series: Recueil des Cours - Colloques / Workshops / Law Books of the Academy, 26. ISBN-13: 978 90 04 15372 1 (ISBN-10: 90 04 15372 1). Hardback, 1072 pp.
This collection of essays offers a precise and evocative image of a remarkable evolution in concepts and practices within international economic law, which may be a preparatory phase on the way towards a true law of globalisation. See www.brill.nl for more information.
Note: Abridged versions of some of the papers have just been published in the TDM Special: New Aspects of International Investment Law - 2004 Research Seminar by the Hague Academy of International Law.
The International Convention on the Settlement of Investment Disputes (ICSID): Taking Stock after 40 years
The International Convention on the Settlement of Investment Disputes (ICSID): Taking Stock after 40 years, Rainer Hofmann / Christian Tams (eds.), Nomos, Baden-Baden, ISBN 978-3-8329-2793-6, 59,-
University of Frankfurt organised an international symposium on current issues of ICSID law. The papers have now been published in a book. Among the authors are Christoph Schreuer, Kaj Hobér, Anthony Sinclair, August Reinisch, Karl-Heinz Böckstiegel, Noah Rubins, Richard Kreindler and Richard Happ.
See www.nomos.de. Customers from the US and Canada: Please order from ISBS, the North-American distribution partner, if available Nomos Publishers, c/o International Specialized Book Services, 920 NE 58th Ave., Suite 300, Portland, OR 97213-3786, USA, phone: +1-800-944-6190, fax: +1-503-280-8832; mail: orders@isbs.com; Web: www.isbs.com