issue #23, week 45. 08 November 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.
Comments, suggestions, news?
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TDM
TDM: Published articles
- Applicable Law in Investor-State Arbitration (A.R. Parra)
- An Analysis of a Developing Jurisprudence in International Investment Law - What Investment Treaty Tribunals Are Saying and Doing - Presentation (J.P. Commission, M. Luz, J. Sullivan)
- An Analysis of a Developing Jurisprudence in International Investment Law - What Investment Treaty Tribunals Are Saying and Doing - Tables (J.P. Commission, M. Luz, J. Sullivan)
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
United States: Supreme Court assesses role of arbitration
November 8, http://www.ft.com/cms/s/9487697e-8d9f-11dc-a398-0000779fd2ac,
Authorised=false.html?_i_location=http%3A%2F%2Fwww.ft.com%2Fcms%2Fs%2F0%2F9487697e-8d9f-11dc-a398-0000779fd2ac.html
%3Fnclick_check%3D1&nclick_check=1
The US Supreme Court yesterday struggled to determine the future of arbitration, the privatised form of justice that has long been seen by business as a way to restrain excessive litigation costs.
The court's foray into the field is being closely watched by the business community at a time of increasing concern that the high cost of US lawsuits is hampering the competitiveness of markets.
Nigeria: Foreign Firm Sues Govt Over Power Project
November 6, http://allafrica.com/stories/200711060506.html
An Austrian Firm, M. Schneider and its Nigerian Partner, Falcony Limited have sued the Ministry of Power and five others over a power project asking the Federal High Court in Abuja to stop the defendants from cancelling, converting or assigning the project pending the determination of the substantive suit.
Other defendants in the suit are: National Integrated Power Project, Niger Delta Power Holding Company Limited, O.T. OTIS Lahmeyer International M. Schneider Energy Limited and Transnational Energy and Power Systems Limited.
The plaintiffs are asking the court for a determination that the plaintiffs's interest in the fifth defendant either as shareholders or technical partners are subsisting and confers on them benefits to all businesses of the fifth defendants."A determination that 1st-4th defendants' decision to cancel its other contracts with the 5th defendant was illegal, unjust and prejudicial to the plaintiffs interests."In a suit filed on their behalf by their counsel, O.K. Ukoha, the plaintiffs are praying for special damages in the sum of US$80M against the defendants for the loss of income and goodwill.
The statement of claim stated that following a dispute among the shareholders of M. schneider Energy Limited, a number of suits were commenced from 2006 one of which was at the International Court of Arbitration, Paris.They said that by their letter of the 8th of August 2006 and 30th April 2007, the 1st-4th defendants listed five contracts purportedly cancelled "but unsually conceal the facts and status of the federal government contract on Engineering, procurement and construction of distribution projects awarded to the 5th defendant on 5th February 2007 in the sum of N1,948,I47,599.92K."
Bolivia plows its own fiscal path
http://www.statesmanjournal.com/apps/pbcs.dll/article?AID=/20071106/OPINION/711
04007/1049
OP-ED, Marcela Sanchez
WASHINGTON -- A few years ago, Bolivia's dependence on Washington as a source of cash was such that its ministers made frequent treks begging for loans to meet the government payroll. They usually had no trouble getting them because Bolivia could be counted on to follow to the letter the economic prescriptions of the international financial institutions located here.
Then in 2006, Bolivia broke with the International Monetary Fund and signaled its desire for independence. Last week the Andean nation becomes the first country ever to withdraw from the International Center for the Settlement of Investment Disputes, a World Bank body that referees contract disagreements between foreign investors and host countries.
Conoco to seek arbitration on Venezuela
November 1,
http://investing.reuters.co.uk/news/articleinvesting.aspx?
type=allBreakingNews&storyID=2007-11-01T112454Z_01_N01393173_RTRIDST_0_CONOCOPHILLIPS-VENEZUELA-URGENT.XML
ConocoPhillips (COP.N: Quote, Profile , Research) expects to file a request for international arbitration on Nov. 2 over compensation for oil operations seized by Venezuela, the U.S. oil company said in its quarterly report filed with regulators on Thursday.
Leftist Venezuelan President Hugo Chavez pushed both ConocoPhillips and Exxon Mobil (XOM.N: Quote, Profile , Research) out of the country in June as part of a nationalization drive that also included utilities and telecommunications companies owned by international companies. Exxon has already filed for arbitration.
United States: Alabama Supreme Court Overturns State's Largest Ever Punitive Damages Award in ExxonMobil Royalties Dispute
November 1,
http://home.businesswire.com/portal/site/exxonmobil/index.jsp?
ndmViewId=news_view&ndmConfigId=1001106&newsId=20071101006657&newsLang=en&vnsId=667
The Alabama Supreme Court today overturned a $3.5 billion punitive damages award against Exxon Mobil Corporation (NYSE:XOM), validating the company's assertion that the state had improperly turned a contract dispute into a fraud action. The award resulted from a lawsuit regarding payment of Mobile Bay project royalties to the state.
"This ruling indicates that the Alabama Supreme Court agrees with ExxonMobil's position that this case stems from a contract dispute over a poorly drafted lease agreement. It's a dangerous precedent for a state to be able to charge someone with fraud if you don't agree with its interpretation of a contract," said ExxonMobil General Counsel Charles Matthews.
In 2003, a jury found that ExxonMobil committed fraud in the calculation of royalties it paid the state on production from its Mobile Bay natural gas wells.
During oral arguments in February, ExxonMobil maintained that the evidence clearly showed that the state, for tactical reasons, had tried to turn a contract dispute into a fraud claim. In its appeal, the company wrote, "The jury and the trial court rewarded those tactics with a giant punitive damages award. But there was no evidence of fraud, and no basis for any punitive damages. The State could not prove and the evidence they submitted does not prove fraud. That's because there was no fraud."
Since production began at Mobile Bay, the company has paid to the state more than $1 billion in royalty and lease payments. ExxonMobil's total capital investment in Alabama currently exceeds $3 billion. The company employs more than 200 people and numerous contractors, and more than 300 retirees live in the state.
Since 1995, ExxonMobil has contributed about $3.5 million to charitable, civic and educational organizations throughout Alabama. The U.S. Department of the Interior has honored ExxonMobil for excellence in mineral royalty and production reporting and compliance.
Venezuela: Las Cristinas Arbitral Tribunal Set
November 1, http://biz.yahoo.com/prnews/071101/to419.html?.v=28
Vannessa Ventures Ltd. ("the Company") announces that the arbitration process dealing with the Las Cristinas property in Venezuela continues before The International Center for the Settlement of Investment Disputes ("ICSID"). The Company reports that the parties have agreed to a new chairman for the arbitral tribunal panel that will continue the process that was suspended temporarily in May of 2007. ICSID has also now confirmed that Dr. Robert Briner will chair the tribunal with Prof. Brigitte Stern and Dr. Charles Brower serving as co-arbitrators.
The Company maintains that its rights to mine Las Cristinas were expropriated in a discriminatory manner and without prompt adequate and effective compensation by Venezuela after an investment of approximately US$ 185 million for the exploration and development of the properties that led to a determination of reserves in excess of 12 million ounces of gold and over 1 billion pounds of copper.
United States: Under the FAA, Choice of Law and Venue Are Decisions for the Arbitrator to Resolve
http://arbitration-forum.blogspot.com/2007/11/courts-respect-authority-of-arbitrators.html
Burress, Inc. v. John Deere Construction & Forestry Co., No. 7:07-CV-00310, 2007 WL 3023975 (W.D. Va. Oct. 15, 2007) 10/15/2007. Under the Federal Arbitration Act (FAA), disputes over where arbitration will occur or which law is applicable are matters for the arbitrator to resolve, according to a Virginia federal court.
In Burress, Inc. v. John Deere Construction & Forestry Co., No. 7:07-CV-00310, 2007 WL 3023975 (W.D. Va. Oct. 15, 2007), Burress and John Deere entered into a dealership agreement that contained an arbitration clause. A contract dispute between Burress and John Deere arose out of the dealership agreement... Full Story
PODCASTS
New episode IDN podcast: Dispute Resolution in Brazil, Interview with Antonio Tavares
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 4 - Dispute Resolution in Brazil, Interview with Antonio Tavares
EVENTS
Frankfurt Investment Arbitration Moot Court
The Frankfurt Investment Arbitration Moot Court is the first international student competition focussing on investment protection. The students will present their arguments orally on 15 February 2008 before tribunals of arbitration and investment treaty specialists.
February 15 16 2008. Frankfurt am Main Chamber of Commerce and Industry, Germany
More information is available at www.investmentarbitrationmoot.com
Short overview of upcoming events
- 08 Nov 2007
European Mediation Congress
CEDR
United Kingdom - 08 - 09 Nov 2007
Arbitration and Dispute Resolution Conference
IBA
Venezuela - 09 Nov 2007
The ICDR International ADR Reporting Program Series - Focus Area: Asia Pacific - Middle East
AAA
United States of America - 09 - 12 Nov 2007
International Commercial Arbitration - Stage 1
DIAC
United Arab Emirates - 10 - 12 Nov 2007
International Commercial Arbitration Training Course (Special Stage)
DIAC
United Arab Emirates - 11 - 13 Nov 2007
International Commercial Arbitration - Stage II
DIAC
United Arab Emirates - 12 Nov 2007
Austrian Arbitration Association - Symposium 2007
Austrian Arbitration Association
Austria - 13 Nov 2007
Swiss Regulation on International Arbitration: First Experiences and Teachings
ASA
Switzerland - 14 Nov 2007
German Discussion forum on Investment Law and Arbitration
A&O
Germany - 15 Nov 2007
Review and Update on Arbitration, Mediation and Adjudication Processes
CIArb Scottish Branch
United Kingdom - 16 Nov 2007
Triple Colloquium: ICC/AAA/ICSID
ICC
France - 19 Nov 2007
ASA Local Group Espace Mittelland - "Vom Umgang mit der ICC"
ASA
Switzerland
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