issue #26, week 49. 06 December 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: Published articles
- Indirect Expropriation in Recent Investment Arbitration
- What is a Legal Dispute?
See https://www.transnational-dispute-management.com/journal-advance-publication.asp
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- 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
US companies urge investment pacts with BRIC nations
December 04, http://www.guardian.co.uk/feedarticle?id=7126228
Major U.S. exporters urged the Bush administration on Tuesday to begin negotiations with the "BRIC" nations -- Brazil, Russia, India and China -- on bilateral investment treaties, which they said were critical to U.S. service company efforts to tap those large markets.
"Failure to act would not only be a missed opportunity, but could put U.S. investors at a significant disadvantage. Many of our European competitors operate in China, Russia and India with BIT (bilateral investment treaty) protection," the President's Export Council said in a letter to President George W. Bush.
USA: Senate Approves Peru Trade Agreement, Sends to Bush
December 04, http://www.bloomberg.com/apps/news?pid=20601086&sid=avd529L7DJjE
The Senate approved a free-trade agreement with Peru that may be the only such accord the Democratic-controlled Congress supports before next year's elections. The Senate voted 77-18 for the agreement, one of the broadest majorities for a trade deal since President George W. Bush took office. The House approved the accord Nov. 8 in the first vote on trade since Democrats took control of Congress. The measure will now go to Bush, who urged its approval, for his signature.
"With the strong votes by both chambers of Congress, we are sending a strong signal to the world that the United States is regaining its bipartisan footing on trade policy," said U.S. Trade Representative Susan Schwab.
U.S. Supreme Court Receives Supplemental Briefing in Hall Street v. Mattel
December 04, http://arbitration-forum.blogspot.com/2007/12/us-supreme-court-receives-supplemental.html
Following oral arguments in the case, the Court requested supplemental briefing on three questions relating to whether the parties' arbitration agreement and its provision for heightened judicial review are based on some legal authority other than the Federal Arbitration Act (FAA).
France: Orascom seeks exit from MobiNil joint venture with France Telecom
December 04, http://www.forbes.com/markets/feeds/afx/2007/12/04/afx4400965.html
Orascom Telecom is seeking to exit its MobiNil joint venture with France Telecom, Les Echos reported without naming its source. Orascom confirmed yesterday at the presentation of its third quarter results that it has commenced proceedings against France Telecom before the International Court of Arbitration of the International Chamber of Commerce concerning a dispute arising out of a shareholders' agreement between the company and France dated Aug 29 2001.
ANALYSIS: Bolivia - The effect of the new constitution on private investment
November 29, http://www.bnamericas.com/story.jsp?sector=6¬icia=415716&idioma=I
Bolivia is once again going through moments of political unrest following last weekend's approval by the so-called constituent assembly of a new constitution. The transparency of the process has been questioned, but the government continues to insist on the need to have the reforms, once they are finalized at the committee stage, passed by congress on December 14.
On the other hand, private companies and international investors are concerned about the possible consequences if the reforms are actually implemented. The following are some of the most relevant aspects included in the constitutional reform, published in state-run news agency ABI...
The government has been less aggressive in its plans to gain control of the country's largest telecoms operator Entel, but the firm's majority owner Telecom Italia (NYSE: TI) is taking no chances and has sought arbitration by the World Bank's International Center for Settlement of Investment Disputes (ICSID).
Ecuador's Fin Min: Won't Accept Future ICSID Jurisdiction
November 29, http://money.cnn.com/news/newsfeeds/articles/djf500/200711291644DOWJONESDJONLINE001025_FORTUNE5.htm
Ecuador has notified the World Bank's International Center for Settlement of Investment Disputes, or ICSID, that it won't accept its jurisdiction as a mediator in future disputes, Foreign Minister Maria Fernanda Espinosa said Thursday.
"The ICSID is an artificial instance of international arbitration. Fifteen days ago, as a sovereign nation, Ecuador´s government notified it that it won't accept its jurisdiction," the foreign minister told reporters at a press conference.
According to Espinosa, this means that ICSID won't be able in the future to resolve conflicts regarding investments or exploitation of nonrenewable resources between Ecuador and private companies. He said the government's decision isn't retroactive and current processes in arbitration at the ICSID will continue.
Ecuador: U.S. treatment of Ecuadorian president "ignorant"
November 28, http://english.people.com.cn/90001/90777/6310922.html
Ecuador's Foreign Minister Maria Fernanda Espinosa told media on Tuesday that the discourteous treatment President Rafael Correa received at Miami airport was a sign of the United States's ignorance and arrogance.
"The U.S. failed to respect the fundamental principle of immunity of jurisdiction for a head of state, according to which simply showing his identification would mean he is given the respectful and appropriate treatment that is his due," Espinosa said.
"Administrative procedures do not preclude the obligation to recognize heads' of state immunity. There is no apology or justification," Espinosa said.
Ecuador's Correa: To Push OPEC To Switch To Stronger Currency
November 28, http://www.stockhouse.ca/mediascan/news.asp?newsid=9728408
Ecuador will continue defending a proposal that the Organization of Petroleum Exporting Countries should uses a stronger currency than the U.S. dollar for its transactions, President Rafael Correa said Wednesday. 'This is an Ecuadorian thesis. Venezuela, Iran and other countries had supported it and we will defend our proposal,' Correa said at a press conference after returning from a trip to Saudi to Arabia, China and Indonesia.
Correa also said that in the future he hopes to organize a common group, with countries like Bolivia and Argentina, against the World Bank's International Center for Settlement of Investment Disputes. (ICSID)
ICDR Opens Singapore Office
November 28, http://www.adr.org/sp.asp?id=33364
Members of the international ADR community welcomed the opening of the International Centre for Dispute Resolution's (ICDR) office in Singapore as a sign of further growth of arbitration in the region. The office is a joint venture between the ICDR and the Singapore International Arbitration Centre (SIAC).
About 200 people attended the opening of the ICDR-Singapore on Oct. 17. John Townsend (shown standing before the podium in the photo), a partner in the law firm of Hughes Hubbard and Reed and chairman of the American Arbitration Association's (AAA) board of directors, said the ICDR chose Singapore because it is a pre-eminent legal and business center in Asia. He lauded the support that the ICDR has received in Singapore.
U.S. District Judge Dismisses Latest Yukos Shareholder Claim
November 28, http://www.bakerbotts.com/infocenter/newsroom/detail.aspx?id=6811f33a-a9e2-4c6c-8258-0147249cb6b2
U.S. District Court Judge Colleen Kollar-Kotelly has dismissed all claims against the Russian government, several of its ministers and several Russian oil companies that were brought in a lawsuit by various ADR-holders in Yukos Oil Company.
After a thorough review of the defendants' response to the lawsuit, Judge Kollar-Kotelly on November 26, 2007 dismissed the lawsuit. Finding that the plaintiffs' lawsuit could not satisfy even jurisdictional prerequisites, the Court described the plaintiffs' effort as a "frontal assault" and a "circumvention" of the applicable legal rules.
Using Courts To Promote International Arbitration: The Rise Of The Anti-Foreign-Suit Injunction
Marisa Marinelli and Robert J. Burns Holland & Knight LLP
http://www.metrocorpcounsel.com/current.php?artType=view&artMonth=December&artYear=2007&EntryNo=7566
Consider this all-too-real hypothetical: A multinational manufacturer headquartered in the United States enters into a distribution contract with a distributor headquartered abroad. The contract contains a provision whereby all disputes relating to the agreement are to be arbitrated in the U.S. pursuant to the AAA's Commercial Rules. The manufacturer terminates the contract, and each party claims a breach by the other. The manufacturer commences arbitration proceedings per the contractual protocol. The foreign distributor refuses to participate in the arbitration, and instead commences an action in its local courts.
As international transactions proliferate, foreign parties' attempts to escape from their arbitration agreements and to force disputes into foreign courts are becoming commonplace. All too often, a party that thought it would be arbitrating international disputes - and that may have commenced arbitration in the agreed forum - may nevertheless find itself the target of foreign litigation.
PODCASTS
New episode IDN podcast: International Arbitration, a Texan perspective
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.
Discussion with Houston international arbitration lawyers James Loftis (Vinson & Elkins) and Bill Knull, Tim Tyler, and Richard Deutsch of Mayer Brown Rowe & Maw.
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
LCIL Friday Lunchtime Lecture: "State Corruption in International Arbitration" by Lord Mustill - Friday 18th January 2008, 13:00
http://www.lcil.cam.ac.uk/news/article.php?section=26&article=611
- Speaker: Lord Mustill, former Law Lord; Yorke Distinguished Lecturer, University of Cambridge
- Date & Time: Friday 18th January 2008, 13:00
Lecture starts at 1pm (with lunch, sponsored by Cambridge University Press, from 12:30pm) - Venue: Finley Library, Lauterpacht Centre, 5 Cranmer Road, Cambridge
The Centre's Friday Lunchtime Lectures are recognised by both the Law Society and the Bar Council as Continuing Professional Development (CPD) accredited courses.
International Law Fund Scholarships: Hague Academy Summer Course
http://www.lcil.cam.ac.uk/news/article.php?section=25&article=608
The International Law Fund (ILF), whose trustees are Sir Elihu Lauterpacht, Dame Rosalyn Higgins and Professor James Crawford, has established a number of scholarships to enable international law students registered at UK universities in the 2007-08 academic year to attend the 2008 summer course at the Hague Academy. Students may choose to apply for the programme in either private or public international law. Up to five scholarships may be awarded, each worth 1000 plus the registration fee.
Closing date for scholarship applications: 1 March 2008
ICC conference examines effect of Sharia law in arbitration
http://www.iccwbo.org/court/arbitration/id17788/index.html
As the use of arbitration grows, the situations in which it is applied and the challenges facing it become ever more numerous and varied. An ICC conference held in Manama, Kingdom of Bahrain on 10-11 November, under the patronage of H. E. Shaikh Khalid Bin Ali Al Khalifa, Bahraini Minister of Justice and Islamic Affairs, placed particular focus on arbitration in relation to Sharia law and the Islamic finance industry.
Organized by ICC and ICC Bahrain, with the involvement of local and international experts, the conference looked beyond the theory of arbitration at some of the practical aspects of its use, especially in a Muslim setting.
Ebrahim Zainal, Chairman, ICC Bahrain said: "Effective cross border dispute resolution has become an integral element for the growth of trade and investment. It is in recognition of the growing importance of arbitration as the most efficient means of commercial dispute resolution at national, regional and international levels that this event was organized."
Short overview of upcoming events
- 07 - 08 Dec 2007
LCIA Latin-American and Caribbean Users' Council Symposium
LCIA
Colombia - 14 Dec 2007
IAI Seminar - The Precedent in International Arbitration
IAI Paris - Premier Forum for International Arbitration
France - 31 Dec 2007
Estadisticas al 31 de Diciembre de 2007
Centro de Arbitraje de Mexico
Mexico - 21 Jan 2008
11th ANNUAL REVIEW OF THE ARBITRATION ACT 1996
BIICL
United Kingdom - 25 Jan 2008
ASA Conference 2008 - "Performance as a Remedy in International Arbitration"
ASA
Switzerland - 29 Jan 2008
New Strategies in International Arbitration
Milan Chamber of Arbitration , Istanbul Chamber of Commerce
Turkey - 31 Jan 2008
Electronic Evidence in International Arbitration
Juris Conferences LLC
United States of America - 31 Jan 2008
ICC Arbitration Conference with the IBA
ICC
United States of America - 31 Jan 2008
LCIA Young International Arbitration Group Symposium
YIAG
United States of America - 01 Feb 2008
"The New York Convention: 50 years" - 11th IBA International Arbitration Day
IBA , UN
United States of America
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
International Court of Arbitration appoints Simon Greenberg as Deputy Secretary General
http://www.iccwbo.org/iccbhhfg/index.html
The International Court of Arbitration today announced the appointment of Simon Greenberg as Deputy Secretary General; Mr Greenberg will assume his position in mid January 2008.
"I am delighted that Simon has accepted to become the next Deputy Secretary General of the ICC International Court of Arbitration," said Secretary General Jason Fry. "Simon has an excellent academic record, he is familiar with the workings of the Secretariat and has recent experience representing parties involved in arbitration and dispute resolution procedures in his capacity as a senior associate of a recognized international law firm."
"Simon also brings to the Secretariat his knowledge and experience of the Asia-Pacific region, which is a region of growing importance to the ICC Court," Mr Fry went on to say. "I am confident that he will fit in well to an established and very talented group of people who presently comprise the Secretariat of the Court."
WTO appoints four new Appellate Body members
November 27, http://www.wto.org/english/news_e/pres07_e/pr501_e.htm
The WTO Dispute Settlement Body appointed today (27 November 2007) the following four new members to the seven-member Appellate Body: Ms Lilia R. Bautista of the Philippines and Ms Jennifer Hillman of the United States for four years commencing on 11 December 2007; and Mr Shotaro Oshima of Japan and Ms Yuejiao Zhang of China for four years commencing on 1 June 2008.
Fulbright partner Jonathan Sutcliffe has been elected to the ICDR Young & International Executive Board
http://www.fulbright.com/index.cfm?fuseaction=news.detail&article_id=6829&site_id=286
The ICDR is the International Centre for Dispute Resolution, and open to all attorneys in the field of international dispute resolution, in-house counsel involved primarily in cross-border work, government employees involved in dispute resolution and academics and graduate students with an interest in the field who are under the age of 40.
Sutcliffe joined Fulbright's London location in September 2005. He has significant experience in international arbitration and dispute resolution and has acted for numerous clients on a diverse range of commercial international arbitration, ADR and litigation matters, including in the energy, construction, defense, insurance, international joint venture and film sectors, and on investor-State disputes. Jonathan also has a non-contentious practice advising on the drafting of arbitration and jurisdiction agreements and clauses. Jonathan is qualified in England and Wales and in New York.
Laurence Kiffer joins Teynier
November 26, http://www.thelawyer.com/cgi-bin/item.cgi?id=130101&d=415&h=417&f=416
French arbitration boutique Derains & Associés has lost partner Laurence Kiffer to rival niche practice Teynier Pic & Associés. Kiffer spent 13 years as a partner at Derains, which is currently acting for a group of Spanish energy companies on a high-profile arbitration worth around $1bn (£490m) against Algerian state-owned energy group Sonatrach.
ICSID Senior Counsel Gabriela Alvarez-Avila Joins Curtis' International Arbitration Group
http://www.cm-p.com/news.htm
Curtis, Mallet-Prevost, Colt & Mosle LLP announced that Gabriela Alvarez-Avila, former senior counsel to the World Bank Group's International Centre for Settlement of Investment Disputes (ICSID), has joined the Firm's International Arbitration Group as counsel. She will initially be based in Mexico City with the Firm's Mexican affiliate, Curtis, Mallet-Prevost, Colt & Mosle, S.C.
Ms. Alvarez-Avila's practice focuses on arbitration, international law and investment law. During her seven years at ICSID, she administered arbitration cases as secretary of tribunals hearing cases in Spanish, English and French. The arbitration proceedings in which she participated included claims based on bilateral investment treaties, the North American Free Trade Agreement, the Central American Free Trade Agreement, national investment laws and international contracts. She has extensive experience in transactions involving a wide range of sectors, including power, telecommunications, oil and gas, and other infrastructure projects.
"Gabriela is an ideal fit for the Firm's International Arbitration Group," said George Kahale, III, the Firm's managing partner. "Her experience at ICSID on Latin American matters and her participation in important NAFTA proceedings will be of great value to the Firm's practice in the region, but we also expect her to be an integral part of our broader team in New York, Paris and London." In Mexico City, the Firm's arbitration team already includes partner Javier Jimenez and counsel Miguel Estrada, former Vice Chairman of the ICC International Court of Arbitration. Partner Peter Wolrich, based in Paris, is the current Chairman of the ICC Commission on Arbitration.
BOOKS / PUBLICATIONS
International Law Reports Volume 129
http://www.lcil.cam.ac.uk/news/article.php?section=25&article=590
Volume 129 of the International Law Reports has now been published by Cambridge University Press.
Edited by Sir Elihu Lauterpacht and Professor Christopher Greenwood, the International Law Reports series is devoted to the regular and systematic reporting in English of decisions of international courts and arbitrators as well as judgments of national courts.
Volume 129 reports on, amongst others, the International Court of Justice's Advisory Opinion in the Wall Case together with two related Israeli Supreme Court decisions; the decisions in SGS v Pakistan and SGS v Philippines; and the judgments in Jones v Saudi Arabia.
Arbitration, Conciliation and Mediation
2nd Edition 2008
Price: Rs 2750/- *
No Of Pages: 1734
Binding: Hard Cover
ISBN: 978-81-89542-28-3
Size: 6.25" X 9.5"
Specially designed Complimentary CD with links to sections and full texts of the judgments
Author: V.A. MOHTA & ANOOP V. MOHTA
Foreword: Justice M.N. Venkatachaliah
Prefatory Comments: Fali S. Nariman
This thoroughly revised and enlarged edition is the first-ever comprehensive commentary of the three diverse but related areas of Arbitration, Conciliation and Mediation. The much-acclaimed First Edition had already been quoted as an authoritative treatise by the Law Commission and the eminent jurists in India as well as abroad. Law Commission had indeed accepted suggestion of the Author for amending law on the State Immunity in the context acta jure gestionis. Authored by the two renowned Jurists, this Second Edition of the commentary covers the burgeoning cases on arbitration in India, along with the relevant legislative enactments, regulatory decisions and a plethora of international Acts and Rules. An independent Part on Mediation deals exhaustively with its varied aspects in as many as 22 headings.
The book provides a thorough analysis and correct legal updates and assessments from across the world. The Authors cover all the relevant avenues of research and practice to exhaustively cover in a very detailed way, the Arbitration and Conciliation Act of 1996 and its detailed comparison with the English Arbitration Act, 1996 and UNCITRAL Model Law. By virtue of their expertise in arbitration, the Authors have been able to provide apposite critical analysis of the landmark judgments of the Supreme Court as well as High Courts and explain the fallacy wherever required.
Principles of International Investment Law
Rudolf Dolzer and Christoph Schreuer
Price: £25.00 (Paperback)
ISBN-13: 978-0-19-921176-0
Estimated publication date: February 2008
450 pages, 234x156 mm
Series: Foundations of Public International Law
- Offers a unique overview of the principles shaping the international law of foreign investment, as they have been defined in investment treaties and by the jurisprudence of international tribunals
- Analyses the dispute settlement mechanisms at work in State v. State and Investor v. State Arbitration
- Ideally suited as an introductory text for students on international investment law courses, or for practitioners new to the area
This book outlines the principles behind the international law of foreign investment. The main focus is on the law governed by bilateral and multilateral investment treaties. The book traces the purpose, context and evolution of the clauses and provisions characteristic of contemporary investment treaties, and analyses the case law interpreting the issues raised by standard clauses. Particular consideration is given to broad treaty-rules whose understanding in practice has mainly been shaped by their interpretation and application by international tribunals. In addition, the book introduces the dispute settlement mechanisms for enforcing investment law, outlining the operation of State vs. State and Investor vs. State arbitration.
Combining a systematic analytical study of the texts and principles underlying investment law with a jurisprudential analysis of the case law arising in international tribunals, this book offers an ideal introduction to the principles of international investment law and arbitration, for students or practitioners new to the field.
Note: TDM/OGEMID members are entitled to a 20% discount, contact us for details.