issue #16, week 34. 21 August 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

PCA to establish Center in India

August 21, http://www.indianexpress.com/story/211690.html

Very soon, India will pop up on the world map of major league arbitration. By this year-end, the Permanent Court of Arbitration (PCA) in The Hague is expected to set up its South Asian Regional Centre in New Delhi.

On the drawing board for three years, since a proposal from the world legal body first reached India, a top Law Ministry official told The Indian Express that the modalities for setting up the facility in New Delhi this year is being "actively worked on" with the Ministry of External Affairs. Officials said that a high-level government team is expected to visit The Hague this year to wrap up the paperwork.

…

Philippines: Fraport Claims vs Philippines Dismissed

August 18, http://www.forbes.com/feeds/ap/2007/08/17/ap4031005.html

The World Bank's arbitration court dismissed a compensation claim by a German airport operator against the Philippine government after Manila canceled its contract to build a new airport terminal, officials said Friday. Germany's Fraport AG started the legal proceedings in 2003 for expropriation without compensation of its investment in the project to build a new terminal at Manila's international airport.

…

Philippines: Fraport to RP govt: Too early to celebrate

August 20, http://www.manilatimes.net/national/2007/aug/20/yehey/top_stories/20070820top2.html

THE legal battle over the controversial Ninoy Aquino International Airport Terminal 3 (NAIA 3) is far from over, according to a statement by the German firm, Fraport AG, on Sunday. Fraport was referring to the decision handed down on Friday by the World Bank's International Settlement of Investment Disputes that dismissed its $425-million compensation claim. The arbitration court in Washington, D.C., said it does not have jurisdiction over the case.

…

Egypt: Two Belgian dredging companies sue Egyptian government for deceit

August 18, http://www.dailystaregypt.com/article.aspx?ArticleID=8843

In an international tribunal that has been ongoing since May 2004, two Belgian dredging companies are accusing the Suez Canal Authority and the Egyptian government of deliberately withholding and manipulating information. The two companies, Jan de Nul N.V. and Dredging International N.V., have submitted their plea against the government of Egypt to the International Center for the Settlement of Investment Disputes (ICSID), an arbitration body attached to the World Bank.

The tribunal, which has been meeting in Paris, has already gone through one round of deliberations, in which it concluded that the ICSID does, in fact, have jurisdiction over the case. The next stage, in which the tribunal will decide on the merits of the case, is set to commence in late September.

…


Note: "Jurisdiction ratione temporis of ICSID Tribunals: Lucchetti and Jan De Nul considered"
by John Gaffney, TDM Volume 3, issue #05 - December 2006

Greece: Hellenic Petroleum unit awarded 50 mln usd in compensation against FYROM

August, http://www.hemscott.com/news/latest-news/item.do?newsId=48500918474338

Greek refiner Hellenic Petroleum said that its unit ELPET-Valkaniki was awarded 50 mln usd in compensation by the International Chamber of Commerce against the Former Yugoslav Republic of Macedonia (FYROM)...

Indonesia Passes Law to Attract Foreign Investors

August 15, http://www.voanews.com/english/2007-08-15-voa10.cfm

Investors are beginning to show renewed interest in Indonesia, whose economy has finally been shaking off the effects of the 1997 Asian economic crisis. But one legal expert says the country's judicial system needs a total overhaul to guarantee justice and reassure investors that the country is safe for business.

…

Viet Nam: Investors unsatisfied with new Investment Law

August 13, http://english.vietnamnet.vn/reports/2007/08/729017/

The new Investment Law has been in effect for more than one year and it is the improved version of the two systems of investment laws on foreign and domestic investment. However, many investors, especially foreign ones, are not satisfied with many points in the new law.

The Ministry of Planning and Investment (MPI) has recently organised a meeting with domestic and foreign investors to discuss problems associated with the new Investment Law in HCM City.

At the meeting, Nguyen Van Lai, General Director of Tovecan joint venture company, said that though the new Investment Law had been in effect for more than one year his joint venture still couldn't transform the joint venture under the regulations of the new law because of objective and subjective reasons.

…

Iraq Says LUKoil Will Get a Fair Shake

August 9, http://pda.moscowtimes.ru/article.php?aid=178670

Iraq's oil minister arrived in Moscow late Wednesday for talks with Industry and Energy Minister Viktor Khristenko and senior oil executives and said he would offer new terms for Russian companies seeking to work in the war-torn country.

Officials from a consortium of three Russian companies -- LUKoil, Zarubezhneft and Mashinoimport -- are expected to meet on Thursday with Iraqi Oil Minister Hussain al-Shahristani in a bid to regain access to the country's oil fields.

…

Telenor calls for urgent EGM at Kyivstar

August 9, http://www.telegeography.com/cu/article.php?article_id=19157&email=html

Norway's Telenor has called for an extraordinary shareholders meeting to resolve the dispute between itself and Russia's Alfa Group over their joint investment in Ukrainian mobile operator Kyivstar. Earlier this year Telenor was forced to remove Kyivstar from its group accounts due to the protracted legal fight with Alfa over its expansion policy in Ukraine, and at the beginning of this month the Norwegian telco won an arbitration case against Alfa in a New York court, which ruled that Alfa must sell its shares in Kyivstar or divest competing assets.

…

Israel: Bank of Israel urges changes in investment law

August 8, http://www.jpost.com/servlet/Satellite?cid=1186066409366&pagename=JPost%2FJPArticle%2FShowFull

The Bank of Israel on Tuesday urged the government to make structural changes to the capital investments program and also to reduce the program's budget in hopes of gaining acceptance into the Organization for Economic Cooperation and Development (OECD).

"The purpose of the capital investment program should be to boost employment and raise the standard of living in low socioeconomic areas," the Central Bank said in a report detailing the changes needed to ensure the efficiency of the Encouragement of Capital Investments Law.

…

Russian court prolongs Yukos's receivership period

August 8, http://en.rian.ru/analysis/20070808/70624390.html

The Moscow Arbitration Court has prolonged the bankruptcy process of oil company Yukos for three months, although its bankruptcy receiver, Eduard Rebgun, asked for a six-month reprieve.

…

U.S. disappointed at need to challenge Canada on softwood lumber deal

August 14, http://www.940news.com/nouvelles.php?cat=22&id=814141

The United States' top trade official says she's disappointed at having to challenge Canada's compliance with the softwood lumber agreement less than a year after it was signed. The U.S. government launched an arbitration proceeding this month alleging B.C. and Alberta lumber exports aren't being properly taxed at the border.

It also claims Ontario and Quebec forest industry support programs are illegal under the softwood deal that came into effect last October after a lightning round of negotiations between the newly elected Conservative government and the U.S. administration. "The fact that we now find ourselves less than a year later having to go to dispute settlement, in this case arbitration, is truly regrettable from our perspective," U.S. Trade Representative Susan Schwab said Tuesday at a news conference wrapping up a North American Free Trade Agreement meeting in Vancouver. "We're very disappointed that we find ourselves in this position."

…

United States to Request Arbitration Challenging Canada's Implementation of the 2006 Softwood Lumber Agreement

August 7, http://www.ustr.gov/Document_Library/Press_Releases/2007/August/
United_States_to_Request_Arbitration_Challenging_Canadas_Implementation_of_the_
2006_Softwood_Lumber_Agreement.html

WASHINGTON - United States Trade Representative Susan C. Schwab announced today that the United States will initiate arbitration proceedings under the 2006 Softwood Lumber Agreement (SLA), and she is working with the United States Department of Commerce to take additional measures to monitor Canadian compliance with the SLA

"When the governments of Canada and the United States signed the Softwood Lumber Agreement last year, we celebrated the end of over 20 years of litigation," said U.S. Trade Representative Susan C. Schwab. "It is truly regrettable that, just ten months after the Agreement entered into force, the United States has no choice but to initiate arbitration proceedings to compel Canada to live up to its SLA obligations relating to export volume caps, proper application of the import surge mechanism, and anti-circumvention. Our efforts to resolve these matters through consultations have not been successful. Therefore, we are initiating arbitration proceedings as provided under the SLA.

"In addition, we are working with the Department of Commerce to take steps to monitor implementation of the Agreement and collect information on compliance with its terms. This information will allow us to consider any future steps necessary to ensure that the SLA is fully implemented."

…

Nigeria: Shell BP Drags Nigeria to Arbitration Panel

August 7, http://allafrica.com/stories/200708070710.html

Shell British Petroleum has dragged the Federal Government to the International Centre for Settlement of Investment Disputes (ICSID), an arm of the World Bank Group, over a dispute concerning hydrocarbon concession.

The case entitled Shell Nigeria Ultra Deep Limited versus Federal Republic of Nigeria with case no ARB/07/18 was registered on July 26, 2007 and is the second case ever brought against Nigeria in the 42-year existence of the ICSID.

…

United States: Monsanto Files $100 Million Claim Against Sandoz

August 6, http://www.wisconsinagconnection.com/story-national.php?Id=1815&yr=2007

Monsanto Company announced today that it has filed an arbitration claim against Sandoz, a subsidiary of the pharmaceutical company Novartis AG, in an international arbitration proceeding.

…

Zimbabwe: Victory for land-grab farmers - Court showdown opens way for more claims

http://www.thezimbabwean.co.uk/viewinfo.cfm?linkcategoryid=3&linkid=8&id=5617

The government has admitted it has to compensate 11 white Zimbabwean farmers of Dutch nationality whose farms were seized in the land grab that destroyed the agricultural sector. Zimbabwe has offered to return the land to the farmers.

The farmers, under the umbrella of the Dutch Farmers Association (DFA) and in conjunction with Agric-Africa, challenged the government in the International Centre for Settlement and Investment Disputes (ICSID), in Paris.

The admission of Zimbabwe's liability came last week, said London-based lawyer Matthew Colman of Washington-based arbitration and dispute resolution group Steptoe and Johnson. The final claim for compensation will now be heard in Paris on October 29.

…

Venezuela: Negotiations under the Shadow of Investment Arbitration in Venezuela

August 7, http://stocks.us.reuters.com/buffer/
companyNewsBuffer.asp?WTmodLOC=C3-News-2&
symbol=XOM&docID=354-N07267180-5MI317GGI6LT1AD96JB2ON2L07

Venezuela is continuing to hold talks with ExxonMobil and ConocoPhillips over compensation for their recently nationalized assets, the Venezuelan oil minister said on Tuesday. "That process has not finished," said Rafael Ramirez, speaking in Buenos Aires during a two-day state visit by Venezuelan President Hugo Chavez.

ExxonMobil and ConocoPhillips quit their oil operations in Venezuela in June after Chavez decreed the country was taking control over the companies' operations in the Orinoco heavy oil belt.

…

Asked if the possibility of arbitration had been ruled out, Ramirez said: "You'd have to asked them," referring to the companies. Ramirez also said the Venezuelan government was planning a $500 million investment in oil exploration in Bolivia.

…

Hungary: AES, Suez sue Hungary over electric pricing-report

August 6, http://www.reuters.com/article/governmentFilingsNews/idUSL0665856920070806

AES Corp (AES.N: Quote, Profile, Research) and French utility Suez (LYOE.PA: Quote, Profile, Research) are suing Hungary at the International Centre for Settlement of Investment Disputes (ICSID), daily Nepszabadsag reported.

The two firms, which own Hungary's second and third largest power plants, started separate procedures at the Washington-based ICSID to get Hungary to pay back revenue lost due to new pricing regulation introduced last year, the paper said .

AES is seeking 5 billion forints ($27.98 million) in damages and Suez 7 billion forints, the paper said.

…

Russia: Telenor Wins Kyivstar Arbitration Case

August 2, http://www.forbes.com/feeds/ap/2007/08/02/ap3980090.html

OSLO, Norway - Russian conglomerate the Alfa Group must sell its stake in Ukrainian mobile operator Kyivstar G.S.M. within 120 days or reduce its holdings in two other Ukrainian telecom companies, Kyivstar's majority shareholder Telenor ASA of Norway said Thursday.

Telenor said in a statement it won an arbitration case in New York against the Alfa subsidiary, Storm LLC, which had been accused by Telenor of being in breach of the founding shareholders' agreement. Telenor owns 56.5 percent of Kyivstar, while Storm owns 43.5 percent.

…

Zimbabwe: IDC Revives Settlement Bid Against Romanian Company

July 27, http://allafrica.com/stories/200707260214.html

THE Industrial Development Corporation is forging ahead with its bid to have the Paris-based International Court for the Settlement of International Disputes (ICSID) enforce a net final award in its US$4 211 750 dispute with the former Romanian state entity, Romsit, over a failed glass manufacturing venture.

IDC is awaiting invoices from the ICSID to approach the Reserve Bank for the foreign currency to pay the international court to issue the enforcement of the net final award.

…

Nigeria: Alpha Delta drags Shell, fg to court over revoked oil wells

July 29, http://www.businessdayonline.com/?c=44&a=15079

Alpha Delta Oil and Gas Resources has asked the Court of Appeal to quash the federal high court decision refusing it as party in Shell Petroleum Development Company's ( SPDC) suit against Federal Government over revocation of Oil Mining Leases (OMLs) 13 and 16

OMLs 13 and 16 initially awarded to SPDC were allegedly revoked by government that the Nigerian National Petroleum Corporation (NNPC) conducted fresh bidding ( in which Alpha Delta participated), prompting Shell's court action.

Although, Federal Government, through Fidelis Oditah , opted that the case be referred to arbitration panel, Alpha and Hi-Rev Exploration and Production Limited preferred bidders for the revoked OMLs 13 and 16, thus asking the court to join them as necessary parties.

…

ICDR Young & International Seeks Board Candidates

August 20, http://www.adr.org/sp.asp?id=32866

The International Centre for Dispute Resolution Young & International (ICDR Y&I) is seeking candidates for its Executive Board and its newly established Global Advisory Board. ICDR Y&I is a networking group for those interested in international arbitration and ADR who are under the age of 40. The organization is affiliated with the ICDR, the international division of the American Arbitration Association.

Launched in April 2004, ICDR Y&I provides opportunities for associates to meet, exchange ideas, and learn from peers and more senior ADR practitioners. ... Deadline for applications is Sept. 15, 2007

CEDR takes international arbitrations to task

August 6, http://www.thelawyer.com/cgi-bin/item.cgi?id=127713&d=11&h=24&f=23

A Commission co-chaired by Lord Woolf, which will look into how settlements can be used more effectively in international arbitrations, has named the 45 global organisations it will consult. The commission, set up by the Centre for Effective Dispute Resolution (CEDR), has invited arbitration bodies from Europe and as far afield as Mexico, Thailand, China and Australia to present their views.

From the UK the Chartered Institute of Arbitrators has been asked to participate.

…

German Constitutional Court Rules on Necessity in Argentine Bondholder Case

by Stephan W. Schill, http://asil.org/insights/2007/07/insights070731.html

On May 8, 2007, the German Constitutional Court (the "Bundesverfassungsgericht") handed down a decision on the question of whether Argentina could invoke necessity under general international law as an affirmative defense against claims brought in German courts by private individuals for the country's default on sovereign bonds in early 2002.[1] While the Court accepted that necessity was recognized as precluding the wrongfulness of a breach of international law, it held that "currently no rule of general international law can be ascertained entitling a State, vis-à-vis private individuals, to suspend the performance of due obligations for payment arising under private law by invoking necessity based on an inability to pay".[2] Judge Lübbe-Wolff, dissenting, countered that a general principle of law existed that allowed a State to suspend the fulfillment of its payment obligations to the extent necessary to protect elementary concerns of the bien commun, such as the protection of the life and health of its citizens.[3]

The decision, one of only a few dealing with necessity under international law, is the first to raise the question whether necessity can be invoked in domestic court proceedings as a defense to the breach of a private law contract entered into with private individuals. The decision is also likely to be of interest in the multiple pending and impending investment arbitrations against Argentina in which necessity plays a central role as an affirmative defense against the alleged breach of various bilateral investment treaties ("BITs").

…

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.

IAMA Calls for Presentations at "ADR: The Boom and Beyond"

August 6, http://www.aprag.org/news.html

The Institute of Arbitrators & Mediators Australia ("IAMA") will host a national conference titled "ADR: The Boom and Beyond" on 11-13 April 2008 in Australia which attracts leading ADR practitioners, academics and industry participants from across Australia and around the world. The conference will focus on the ability of ADR to meet the challenges in Australia and how ADR professionals can best meet the needs of consumers of alternative dispute resolution services in the boom environment.

…

Law Multilateral Approach, September 17 - 20. Havana, Republic of Cuba

http://www.bufeteinternacional.cu/edm_ing_programa_academico.html

This meeting is aimed at promoting, exposing, and exchanging among legal professionals, on topics related to the exercise of the legal profession, as well as to narrow relationships of collaboration and interchange among legal offices of the world.

At the same time, there will also be the 3rd Edition of Consulmar, which will be a gathering of Legal Services and Insurance Market specialists. With the attendance of worldwide recognized Legal, Insurance and Maritime professionals, Consulmar will be an excellent forum for meetings and exchange of experiences for those involved in the sector.

ICC Court New York conference, theme: Arbitrator independence - September 24

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

Arbitrator independence will be the theme of a conference to be held in New York City on 24 September 2007. Organized by the ICC Court with the support of the US Council for International Business (USCIB), this event is a chance to find out more about the workings of the Court from those most directly involved.

Critical Issues in International Commercial Arbitration, October 19 - 20

www.ficci.com/icanet

On 19 and 20 October 2007 The International Federation of Commercial Arbitration Institution (IFCAI), which organisation comprises all major arbitral institutions in the world, among them ICC, CIETAC, AAA, Cairo Centre, LCIA, ICAC (Russia), ICSID, SCC and many more, will hold a Conference in New Delhi in co-operation with The Indian Council of Arbitration (ICA). For further details you may also contact Mr. G. K Kwatra, Executive Director of ICA, e-mail: ica@ficci.com, ica@nda.vsnl.net.in, website: www.ficci.com/icanet

MOVES / JOBS

Fulbright Strengthens International Disputes Team with Chris Warren-Smith

August 17, http://www.fulbright.com/index.cfm?fuseaction=news.detail&article_id=6596&site_id=286

Chris Warren-Smith, a leading international disputes lawyer, has joined the international law firm of Fulbright & Jaworski L.L.P. Warren-Smith joins Fulbright as a partner and will head the International Financial Services Disputes practice.

Warren-Smith is the latest in a number of recent key hires made by the firm's London office. Jeremy Sheldon joined Fulbright as an energy projects partner in March.

Warren-Smith joins Fulbright's rapidly expanding London office from Barlow Lyde & Gilbert, where he headed the Financial Services Regulatory Team and the Banking Litigation Team. He has considerable experience, including more than two decades handling heavyweight litigation, arbitration, international dispute resolution and investigations. Warren-Smith brings a notable mix of experience as Fulbright continues to expand to serve the firm's international clients from a growing global platform.

Having recently handled high-profile cases involving Shell, Split Capital Investment Trusts, banking overdraft charges and finite reinsurance, Warren-Smith additionally is well-known for his work during the Barings and Maxwell collapses. His financial services and insurance experience includes disputes in jurisdictions across the globe. Warren-Smith has also represented companies in foreign investigations in jurisdictions beyond the United Kingdom, such as the United States, Australia and the Channel Islands.

Fulbright Names New Co-Head of International Arbitration Practice

August 14, http://www.fulbright.com/index.cfm?fuseaction=news.detail&site_id=286&article_id=6589

Fulbright & Jaworski L.L.P. has named London Partner David J. Howell as the co-head of the global firm's leading International Arbitration and Alternative Dispute Resolution Practice Group. Howell has more than 25 years' experience as an advocate and counsel in substantial international, commercial, investment, construction and engineering disputes. He will co-head the 30-lawyer practice group with Fulbright Partner Mark Baker.

…

Litigator John Bowman Joins King & Spalding's Arbitration Practice

August 14, http://www.kslaw.com/portal/server.pt?space=KSPublicRedirect&control=KSPublicRedirect&PressReleaseId=2716

King & Spalding, a leading international law firm, announced today that high-profile litigator John P. Bowman has joined the international arbitration practice as a partner in the Houston office. Bowman's arrival marks the 33rd lateral hire, including seven new partners, at the firm in the past year. Bowman focuses almost exclusively on domestic and international disputes for energy and petrochemical companies. Few lawyers have Bowman's depth of experience in handling significant energy disputes, particularly in the international arbitration arena.

"John is a seasoned lawyer in the area of international arbitration and is recognized as one of the premier litigators in the energy field," said Robert E. (Bobby) Meadows, managing partner of King & Spalding's Houston office. "He brings considerable depth to the firm's renowned international arbitration practice, and we are excited about the additional benefits his experience will bring our clients."

Steptoe & Johnson Joined by Patrick Norton

http://lawfuel.com/show-release.asp?ID=13772

Steptoe & Johnson LLP has added Patrick M. Norton as a partner in its International Department in the firm's Washington, D.C., office, effective immediately. Mr. Norton has a substantial Foreign Corrupt Practices Act practice, including compliance counseling, internal investigations, and defense advice. He has a particular expertise in assisting clients with FCPA issues in China, based on seven years practice there, and in Asia more generally. In addition, Mr. Norton has extensive experience in international commercial arbitration, litigation, regulatory issues, and trade disputes, including serving as lead counsel in more than 100 international matters involving Asia, Europe, and the Middle East. He has also served as an arbitrator in international disputes under AAA, ICC, and UNCITRAL rules.

…

CC sends two London lawyers to US

July 31, http://www.thelawyer.com/cgi-bin/item.cgi?id=127644&d=122&h=24&f=46

Clifford Chance has continued its mobility strategy with the transfer of London-based Latin America specialist adviser Ignacio Suarez Anzorena to Washington DC. He will be joined next month by counsel Christian Leathley, who will be based in New York.

…

Interview with Robert B. Davidson, Executive Director, Arbitration Practice of JAMS

http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=August&artYear=2007&EntryNo=6990

Editor: Can you tell us about the experience of JAMS neutrals in international arbitration and its ability to provide skilled arbitrators for these proceedings?

Davidson: JAMS neutrals currently sit as arbitrators in numerous international arbitrations. I am personally acting in ten cases as we speak. It is important for people to realize that individuals affiliated with JAMS are able to serve - and often do serve - as neutrals in proceedings administered by other provider organizations such as the AAA, the ICDR, the ICC, CPR and the like. Several of our people are Fellows of the Chartered Institute in London....

Books

International Investment Arbitration: Substantive Principles McLachlan, Shore and Weiniger

http://www.oup.com/uk/catalogue/?ci=9780199286645

International Investment Arbitration: Substantive Principles provides the first modern detailed analytical survey of the developing substantive principles of international law which are being applied to disputes by international investment tribunals. It considers the key questions that arise, and provides a clear description of the present state of the law as reflected in tribunal practice.

As the volume of international investment arbitration grows, international law firms are increasingly having to acquire expertise in all aspects of this specialised and rapidly developing field. Written by a leading author team from Herbert Smith, and benefiting from the public and private International law experience of Professor Campbell McLachlan, this book is an essential reference work for international arbitration counsel, arbitrators, and academics

Note: TDM / OGEMID members are entitled to a 20% discount. (ask for special link)

International Arbitration Clauses Re-released

August 14, http://www.whitecase.com/News/Detail.aspx?news=1740

Paul D. Friedland's Arbitration Clauses for International Contracts, the authoritative text for international arbitration clauses, has been re-released in its second edition. A comprehensive analysis and collection of workable language for dispute resolution clauses in international contracts, accompanied by easy-to-reference appendices, Friedland's work is considered an essential reference for in-house counsel negotiating international contracts as well as for international arbitration practitioners.