issue #27, week 50. 13 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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Recent issues:

NEWS

Norway: TGS Initiates Formal Procedures for Merger Dispute Resolution

December 7, http://www.tgsnopec.com/newsroom/newsroom_details.asp?id=387

TGS-NOPEC Geophysical Company ASA ("TGS") has today formally initiated dispute resolution procedures in relation to the merger agreed with Wavefield Inseis ASA ("Wavefield Inseis"). The procedures, which are detailed in section 20 of the merger plan dated 20 August 2007, call for an initial 30 days negotiation period. If the parties are unable to reach an amicable solution within the said time period, arbitration proceedings in Oslo will be the next step.

TGS initiates the procedures with the aim to close the merger, as the current stagnation of the merger process is deemed unfortunate both for the merging parties, their employees and for their shareholders.

TGS has offered to have Wavefield Inseis meet with PriceWaterhouseCoopers ("PwC") to discuss their independent review of the events surrounding TGS' third quarter 2007 release. However, Wavefield has repeatedly stopped short of saying it would support the agreed upon merger terms even if TGS' actions were upheld by the joint review conducted by the two companies or PwC's independent review. To date, we have not been made aware of any facts which draw into question any of TGS' actions related to this matter. While we are hopeful that Wavefield will reconsider its position during the 30 day negotiation period preceding arbitration and remain willing to work in good faith to resolve this matter, we are prepared to let the arbitration process address any disagreement with respect to the closing of the merger.

We remain of the view that there is no legal or factual basis for terminating the approved and agreed merger.

…

Belgium: ICC Court overrules Agfa's termination of AgfaPhoto trademark agreement

December 12, http://www.forbes.com/markets/feeds/afx/2007/12/12/afx4429700.html

Belgian imaging and software group Agfa-Gevaert NV said the International Chamber of Commerce's International Court of Arbitration did not uphold its decision to terminate the trademark licence agreement with AgfaPhoto in Oct 2005.

But the court added any sublicensing activities done by AgfaPhoto must be limited to the consumer market, Agfa said.

…

USA: Could the US be brought before arbitration panels?

December 12, http://www.ft.com/cms/s/0/06da42ae-a857-11dc-9485-0000779fd2ac.html?nclick_check=1

From Prof Cynthia Crawford Lichtenstein: Sir, Your editorial "A rescue plan that is worth the price" (December 8) admits that the US subprime initiative may cause "investors in mortgage-backed securities [to] face a fall in the value of their investments because the terms are being unilaterally varied". But these "variations of contract", among other flaws in the rescue plan, are considered by you to be "justified by the extreme circumstances".

…

Herbert Smith blazes a trail with litigation funding move

December 10, http://www.thelawyer.com/cgi-bin/item.cgi?id=130342&d=415&h=417&f=416

Herbert Smith has ploughed ahead with third-party litigation funding, putting on hold its working group on the matter, as it assesses the flood of new entrants to the market. The country's leading litigation firm is the first firm to directly instruct a broker to find financial backing for a case after asking broker Calunius, which matches hedge funds to firms and their clients, for help with two matters, the details of which remain confidential.

Herbert Smith litigation partner Matthew Weiniger said: "We're excited about funding. It means clients who couldn't normally afford Herbert Smith can come to us."

…

Note: Matthew Weiniger of Herbert Smith LLP will prepare a TDM special issue on Precedent in Investment Arbitration.

PERU: Opening Up Indigenous Land to Foreign Investors

December 10, http://www.ipsnews.net/news.asp?idnews=40417

Peruvian President Alan García plans to introduce in Congress a draft law that would facilitate the purchase by foreign investors of communally owned land in rural indigenous villages. Although analysts say the initiative will spark social conflict, the president argued that the small farmers have neither the training nor the economic resources needed to add value to their property.

The draft law states that only 50 percent plus one of the members of the communities would be needed to approve a sale or lease of land to private investors.

…

Philippines: Fraport seeks annulment on Philippine airport case decision

December 07, http://business.inquirer.net/money/breakingnews/view_article.php?article_id=105522

Fraport AG has filed for an annulment of the World Bank's dismissal of its action to seek compensation from the Philippine government for expropriating a terminal project at Manila airport.

…

Interdigital Comm confirms $134 mln award for IDCC in dispute with Samsung

http://news.moneycentral.msn.com/provider/providerarticle.aspx?feed=BCOM&date=20071205&id=7903722

Interdigital Comm confirms $134 mln award for IDCC in dispute with Samsung over 2G royalties owed Co announces that the federal district court judge presiding in the enforcement proceeding between IDCC and Samsung confirmed in its entirety an arbitration award rendered in September 2006 by an Arbitral Tribunal operating under the auspices of International Court of Arbitration of the International Chamber of Commerce. The award directed Samsung to pay IDCC $134 mln in royalties plus interest less an approx $6 mln prepayment credit for sales of 2G terminal units through 2005. The award also set a royalty rate to be applied to Samsung's 2006 sales of 2G terminal units.

…

UK: S&N's dispute with Carslberg over BBH set to be resolved by June

December 6, http://business.scotsman.com/index.cfm?id=1902062007

SCOTTISH & Newcastle expects to submit details of its dispute with Carlsberg to an arbitration panel shortly and the spat could be resolved by June, the Edinburgh-based brewer said yesterday.

…

S&N said the Arbitration Institute of the Stockholm Chamber of Commerce had confirmed the appointment of an unnamed chairman to the tribunal that will hear the dispute. A spokesman for the Scottish brewer said: "The rules of the [chamber] provide that, in most cases, an arbitration decision is expected within six months of the arbitral tribunal being constituted.

Ghana: Investcom Told To Halt Arbitration In London

December 07, http://www.newtimesonline.com/index.php?option=com_content&task=view&id=12822&Itemid=181

THE Commercial Court in Accra, yesterday restrained Investcom Consortium from continuing with an arbitration in London, U.K, in a case in which Richmond Aggrey, a Ghanaian businessman, has sued the company and is claiming 20 per cent shares in Scancom Limited, operators of Areeba mobile phone service, now MTN.

The court, presided over by Justice Henry Kwofie, also awarded ¢8 million cost against Investcom Consortium Holdings S.A of Beirut, Lebanon who are the majority shareholders of Scancom Ghana Limited.

Investcom Consortium commenced arbitration proceedings in London despite decisions by both the trial court and the Court of Appeal that they will not stay proceedings pending that arbitration. Under the circumstance, Mr. Yonnei Kulendi, counsel for Mr. Aggrey, moved a motion on notice for interlocutory injunction to restrain Investcom from proceeding with the arbitration. Besides Investcom, Mr. Aggrey, former Vice Chairman of Scancom, is also suing the telecommunication giant and Grandview Management of Texas, United States, to claim his shares.

…

Viet Nam: Foreign direct investment increases within WTO regulations

December 09, http://english.vietnamnet.vn/biz/2007/12/758793/

The association of foreign-invested enterprises held a seminar on foreign direct investment in line with WTO commitments in Hanoi on December 7. Truong Dinh Tuyen, member of the Government's senior consultant, said foreign enterprises update WTO regulations more constantly than local enterprises. After joining the WTO, Vietnam has made great strides in improving the trade and investment environment in line with WTO regulations. This has created favourable conditions for foreign enterprises in Vietnam.

Experts said local management agencies are facing difficulties in granting investment licenses and implementing the Investment Law and WTO commitments. Meanwhile, State management agencies have different opinions and ways to deal with the same issues.

…

$2 Billion Megafon dispute settles

November 29, http://www.sjberwin.com/events/news/date/2_billion_megafon_dispute_settles/2007_11_29.html

On Thursday 29 November, in Hamilton, Bermuda, the High court validated a master settlement agreement between IPOC International Growth Fund Limited and LV Finance Group Limited and others, which finally brings to an end a series of global litigations and arbitrations which have taken place over the last four years. SJ Berwin LLP acted on behalf of LV Finance Group Limited. The drop-hands settlement ends a dispute worth over USD 2 billion involving arbitrations in Zurich and Geneva and related actions in Bermuda, the British Virgin Islands, and other jurisdictions. The actions started in September 2003 and has attracted substantial international press attention.

The settlement agreement required Court approval, which was obtained this morning from Justice Ian Kawaley. SJ Berwin partner Justin Michaelson acting on behalf of LV Finance Group Limited said: "This represents a terrific result for LVFG and is a vindication of our client's position in response to all IPOCs claims" Also acting on behalf on LVFG were Jeffrey Elkinson of Conyers Dill and Pearman and Dr Balz Gross of Homburger Rechtsanwälte.

…

US: ITLOS Award Preserves 93% of Corentyne Licence

http://cgxenergy.ca/PR_Sep20_2007.html

CGX Energy Inc. (OYL.U - TSX-V) is pleased to announce that the International Tribunal on the Law of the Sea (ITLOS) [correction: The Award in the Guyana-Suriname arbitration was in fact rendered by an arbitral tribunal established pursuant to Articles 286 and 287 and in accordance with Annex VII of the UN Convention on the Law of the Sea, and not by ITLOS, as the CGX press release states. HT: PCA] award on the maritime boundary dispute between Guyana and Suriname was released at 4:00 pm EST September 20, 2007.

In the decision the ITLOS Tribunal determined the following:

Kerry Sully, President and CEO of CGX stated, "The decision is extremely positive for CGX, as it concludes that 93% of CGX's Corentyne Licence and 100% of our Georgetown Licence are in Guyana territory. Our Eagle drilling location in 2000 is 15 kilometres within this border award. The entire Eagle turbidite is within the awarded area and the majority of our Wishbone West target as well. In addition, 100% of our newly interpreted Eagle Deep target is in Guyana territory and under license to CGX. These targets and similar targets identified on our 25% held Georgetown block are shown on the close-up map of a portion of our concessions below."

…

More information can be found here: http://www.pca-cpa.org/showpage.asp?pag_id=1147, award: http://www.pca-cpa.org/upload/files/Guyana-Suriname%20Award.pdf

…

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

ICC: Arbitration and Expertise: Use of Experts in International Arbitration - 11 January 2008

http://www.iccwbo.org/events/display12/index.html?CodeICMS=S0806

A conference "Arbitration and Expertise: Use of Experts in International Arbitration" will take place in Paris on 11 January 2008.

10th anniversary of the ICC Rules of Arbitration: Conference on 23 April 2008

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

To celebrate the 10th anniversary of the ICC Rules of Arbitration, a conference will be held in Paris under the auspices of the International Court of Arbitration on 23 April 2008.

Members of the Court, the Secretariat, practitioners and the users of ICC Arbitration will assess the impact of the 1998 Rules on the conduct of international commercial arbitration and developments in the practices of the Court over the last decade.

Report: ICDR Young & International Holds 4th Annual Event

http://www.adr.org/sp.asp?id=33422

Discussions during the International Centre for Dispute Resolution Young & International's (ICDR Y&I) 4th Annual Event centered on how to tailor arbitrations to fit the individual case. In his keynote address, Michael Schneider, a partner at Lalive, Geneva, emphasized the need for arbitrators to conduct proceedings in an interactive manner and to assist the parties in organizing the procedure efficiently, without forgetting that the parties "own" the arbitration and that arbitrators should serve the parties' needs.

…

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

Daniel M. Price to be Assistant to the President for International Economic Affairs

December 03, http://www.whitehouse.gov/news/releases/2007/12/20071203.html

President George W. Bush today announced that he has named Daniel M. Price to be Assistant to the President for International Economic Affairs while continuing to serve as Deputy National Security Advisor for International Economic Affairs. Mr. Price's responsibilities will include international trade and investment, international aspects of climate change and energy security, and development issues. Mr. Price will also serve as the United States chair of various bilateral economic dialogues, including the Transatlantic Economic Council and the U.S.-India Economic Dialogue.

…

Mark Baker (Fulbright) Appointed U.S. Representative by USCIB

December 10, http://www.fulbright.com/index.cfm?fuseaction=news.detail&article_id=6904&site_id=286

Fulbright partner Mark Baker has been appointed to serve a two-year term as a U.S. representative on the International Chamber of Commerce (ICC) Commission on Arbitration by the United States Council for International Business (USCIB).

…

BOOKS

ICC issues model contract for major projects

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

International turnkey construction projects are often complex transactions, requiring correspondingly complex legal documentation. Many such major construction projects are an important element in international development and the arrangements put in place must be durable, clear and equitable.

ICC has prepared ICC Model Turnkey Contract for Major Projects to provide contractors and employers with a balanced platform that is fair to all parties. This has been achieved through the inclusion of a good faith concept, an explanation of the purpose of certain provisions to avoid misinterpretation, and the use of equal and mirrored obligations of the parties. The model also accommodates the desire of all parties for certainty on issues of price and scope, the need for swift and effective dispute resolution, and the need for complete and informed allocation of risks.

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Available now from www.iccbooks.com