issue #21, week 43. 26 October 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

Bolivia: Telecom Italia seeks arbitration over Entel

October 24, http://www.telegeography.com/cu/article.php?article_id=20217&email=html

Telecom Italia (TI) is seeking international arbitration to block the state takeover of its Bolivian subsidiary Entel. President Evo Morales issued a decree in April ordering TI to sell part or all of its 50% stake in Entel to the Bolivian state. Initially the Italian company agreed to talk with the Bolivian government but talks collapsed when the latter refused the company's request to move the negotiations to another country. Telecom Italia has now apparently initiated a case before the World Bank's International Centre for Settlement of Investment Disputes (ICSID), which facilitates conciliation and arbitration in disputes between governments and private foreign investors.

…

Indonesia: Future perfect reform of investment regime

http://www.thejakartapost.com/detaileditorial.asp?fileid=20071024.F04&irec=3

Indonesian leaders often phrase their reform policies with future perfect verb constructions. "We intend to revise the labor laws," or "We will cut bureaucratic red tape and judicial corruption," or "We will abolish local taxes that contravene national contracts," or "We will clarify the list of sectors closed to foreign investment," or "We hope to revise labor laws to make them business friendly."

…

See also 'Indonesia gets emergency free zones'

Yemen: Amendments to Investment Law to be referred to the Cabinet

October 24, http://www.yobserver.com/local-news/10013102.html

Amendments to the Investment Law have been proposed by the Investment Authority to make investment better and easier for all parties, said Saleh al-Attar last week. The set of amendments will be referred to the Cabinet for approval and then passed through all the constitutional procedures before being issued.

"An agreement is to be signed between the Investment Authority and the Foreign Investment Advisory Services that belongs to the World Bank to prepare the technical program aid for the period of three years worth a total amount of $ 6 million," said al-Attar.

…

International Court of Justice: Case Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) (October 8, 2007)

http://www.asil.org/ilib/2007/10/ilib071023.htm#j1

The International Court of Justice (Court) held unanimously that Honduras has sovereignty over four "cays" or small islands adjacent to the coasts of Honduras and Nicaragua. The Court diverged on its delimitation of the single maritime boundary. By a vote of fifteen to two it set a very specific geographical point (15 00' 52"N and 83 05' 58" W) for the starting point for the single maritime boundary dividing the territorial sea, continental shelf, and exclusive economic zones (EEZs). It further held by a vote of sixteen to one that the parties must negotiate in good faith to determine the course of the delimitation line.

…

Philippines: ICC sides with RCBC in Bankard case

October 22, http://www.bworldonline.com/BW102207/content.php?id=021

A three-member arbitration court of the International Chamber of Commerce (ICC) has sided with RCBC Capital Corp. in a dispute arising from its purchase of Bankard, Inc. from Equitable PCI Bank in 2000.

In a disclosure to the Philippine Stock Exchange on Friday, RCBC Capital said the tribunal had agreed that Bankard's financial statements had not been in accordance with generally accepted accounting principles (GAAP).

The tribunal ruled that RCBC Capital "is entitled to damages for the breach," the wholly owned subsidiary of Yuchengco-led Rizal Commercial Banking Corp. (RCBC) said. However, the ICC ruled against RCBC Capital's plea for the revocation of the share purchase agreement, opting instead for an award of damages subject to proof by RCBC Capital of actual loss.

RCBC Capital said it would present evidence to the tribunal on the loss it had sustained as a result of the breach. "RCBC Capital's claim is for approximately P834 million plus interest of 6% per annum," it said.

…

South Korea: Seoul rethinks foreign investment law

October 22, http://www.ft.com/cms/s/c27347a0-80c4-11dc-9f14-0000779fd2ac,
Authorised=false.html?_i_location=
http%3A%2F%2Fwww.ft.com%2Fcms%2Fs%2F0%2Fc27347a0-80c4-11dc-9f14-0000779fd2ac.html%3Fn
click_check%3D1&nclick_check=1

The South Korean government is preparing to introduce a presidential decree that could place foreign investors under greater scrutiny, as it tries to broker a compromise with lawmakers wanting to protect industries as varied as electronics and steel from outsiders.

Several lawmakers from across the political spectrum are attempting to expand the range of sectors from which foreigners are banned to include all areas deemed important to the "national economy".

…

Singapore: International Centre For Dispute Resolution officially opens office

October 20, http://www.channelnewsasia.com/stories/singaporelocalnews/view/306786/1/.html

The International Centre For Dispute Resolution has officially opened in Singapore. The centre is a joint venture between the Singapore International Arbitration Centre and the American Arbitration Association.

…

Agfa-Gevaert on AgfaPhoto

October 19, http://www.agfa.com/en/co/news_events/press_archive_months/press_releases/CO20071019_AP_UK.jsp

The German and international press have published various articles on alleged claims and lawsuits by the insolvency receiver of AgfaPhoto GmbH. Agfa-Gevaert has not received any formal claims by the insolvency receiver of AgfaPhoto GmbH nor is Agfa-Gevaert currently engaged in litigation proceedings with the insolvency receiver of AgfaPhoto GmbH. Agfa-Gevaert has meritorious positions on the reported alleged claims and will defend itself vigorously if any such claims were brought.

... it is reported that Agfa-Gevaert would be engaged in arbitration proceedings with the insolvency receiver of AgfaPhoto GmbH before the International Chamber of Commerce (ICC) concerning an alleged payment obligation of 46 million Euro. No such proceedings are currently pending and Agfa-Gevaert is not aware that the insolvency receiver would have lodged a claim with the ICC. ...

U.S. Federal Court Imposes Sanctions Against Lawyer Who Brought Ecuador Lawsuit Against Chevron

October 18, http://www.chevron.com/news/press/release/?id=2007-10-18

Follows August Ruling That Cancer Claims Were Fabricated. The U.S. District Court for the Northern District of California has imposed sanctions against three attorneys, including Cristobal Bonifaz, for fabricated cancer claims against Chevron. Bonifaz is the architect of the ongoing litigation against Chevron in Ecuador. The lawsuits relate to Texaco Petroleum Company's former operations in the country.

…

PODCASTS

New episode IDN podcast: Thierry Garby, International Mediation

http://www.cpradr.org/TrainingEvents/Podcasts/tabid/261/Default.aspx

International Dispute Negotiation (IDN) is presented by CPR as an example of the ways professionals from different countries and backgrounds approach dispute resolution. The podcast is intended to help listeners understand the risks of disputes and shed insight on optimal ways of accepting, mitigating, and managing those risks in the real world, whether through mediation, arbitration, or litigation that arises far from home. The host is Michael McIlwrath, Senior Counsel, Litigation for GE Infrastructure - Oil & Gas.

A new episode is available for download: IDN 3 Thierry Garby, International Mediation

EVENTS

OGEMID reception, Columbia University - New York: October 31, 17.15

As part of Columbia University Law School's investment treaty conference and following a suggestion by Prof Jose Alvarez, of Columbia Law School and President of the American Society of International Law, Prof. Waelde would like to invite OGEMID members to get to know each other personally at a reception. We hope that there will be enough "electronic voices" converted into "real people".

Location: Columbia University, New York, Lerner Hall, Room 555.

About the conference http://www.cpii.columbia.edu/events/

Inaugural Lecture - Professor Loukas Mistelis - 7 November

http://www.qmul.ac.uk/events/public_show.php?id=754

Time: 5.30pm. Venue: Derek Willoughby Lecture Theatre, John Vane Science Centre, Charterhouse Square. Queen Mary, University of London

Details: International Arbitrator and the Law. The lecture explores how the law looks at and eventually regulates the arbitrator (status, duties, rights and powers) and how the arbitrator look at the law (obligation to find, apply or not, and interpret existing statutory or customary law). A distinction will be made between commercial and investment treaty arbitrators.

ICC Bahrain conference on arbitration in an Islamic setting, 10 - 11 November

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

The role of arbitration in economic development and in relation to Sharia law and the Islamic finance industry will be the subject of a conference in Manama on 10 -11 November. Organized by ICC Bahrain with the involvement of local and international personalities, the event will be followed by a one-day workshop on the enforcement and challenge of arbitral awards.

Report: ICDR Conference in Toronto Focuses on NAFTA

http://www.adr.org/sp.asp?id=33238

The impact of the North American Free Trade Agreement (NAFTA) on alternative dispute resolution was the focus of a recent conference in Toronto sponsored by the International Centre for Dispute Resolution (ICDR). The focus on NAFTA takes special relevance as the trade agreement marks its 15-year anniversary next year. NAFTA was implemented to remove tariffs on many products traded among the United States, Canada and Mexico, and to promote greater economic cooperation within the region.

…

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

MOVES / JOBS

Sidley Partner Marinn Carlson Named to FIAA Executive Committee

http://www.sidley.com/news/pub.asp?PubID=12372810222007

Sidley Austin LLP is pleased to announce that Marinn Carlson, a partner in the firm's International Trade/Arbitration practice, has been named to the Executive Committee of a newly launched organization - the Foundation for International Arbitration Advocacy (FIAA).

FIAA is the first organization dedicated to providing lawyers with learning-by-doing advocacy training specifically designed for international arbitration.

…

BOOKS

Transnational and Comparative Commercial, Financial and Trade Law

Jan Dalhuisen, August 07, 522pp, Pbk, 9781841137094, £50 / €75, Discount Price: £40 / €60
http://www.hartpub.co.uk/books/details.asp?sc=1-84113-709-X

If you would like to order this publication OGEMID members are entitled to a discount rate of 20%. Contact us for details

Reviews from the previous edition:

'Dalhuisen's style is relaxed...what he writes convinces without the need for an excess of references to sources...a highly valuable contribution to the legal literature. It adopts a useful, modern approach to teaching the young generation of lawyers how to deal with the increasing internationalisation of law. It is also helpful to the practising lawyer and to legislators.'

Christina Hultmark Ramberg, Uniform Law Review/Revue de Droit Uniforme

'..this is a big book, with big themes and an author with the necessary experience to back them up. ... Full of insights as to the theories that underlie the rules governing contract, property and security, it is an important contribution to the law of international commerce and finance.'

William Blair QC, Law Quarterly Review

The third edition of this uniquely wide-ranging work once again grapples with the dynamic and complex fields of law that make up the modern law of international commerce, finance and trade. As a guide for students and practitioners it is unrivalled. The original structure has been retained, with an extensive introductory chapter dealing with the sources of modern commercial and financial law in its comparative context, the forces of transnationalisation and the development of the modern law merchant or lex mercatoria as a largely autonomous finance-driven event. Further chapters deal with modern developments in contract, payments, moveable tangible and intangible assets and the emergence of new proprietary rights in them. Later chapters look at finance leases, repos, receivable financings and securitisations, the regulation of cross-border financial services and investment banking practices.

Jan Dalhuisen is Professor of Law at King's College London, and a regular Visiting Professor at the University of California at Berkeley, the Tsinghua University in Beijing, and the University of New South Wales in Sydney Australia.