issue #01, week 02. 07 January 2008
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

S&N awaits bid battle verdict - expected in July

04 January, http://www.msnbc.msn.com/id/22495727/

Scottish & Newcastle on Thursday said it would know by the end of July whether it had won its legal battle to get full control of its Russian joint venture as it tries to remain independent after rejecting a takeover bid from Carlsberg and Heineken. S&N said it had received a letter from the Arbitration Institute of the Stockholm Chamber of Commerce confirming that formal proceedings had started in the arbitration process over Baltic Beverages Holding, the 50-50 Russian joint venture between the UK brewer and Carlsberg. The letter said the Institute would rule by July 3.

…

Deadline imposed on S&N acquisition

December 19, http://www.ap-foodtechnology.com/news/ng.asp?n=82179-s-n-carlsberg-arbitration

UK trade authorities have given a consortium formed between Carlsberg and Heineken a four-week window in which to outline a "firm" intention to acquire brewer Scottish and Newcastle (S&N) or cease any further action relating to the deal.

…

Through the takeover plan, Heineken would control S&N's Western European operations, including the UK market, while Carlsberg would claim full ownership of the BBH. However, S&N claims that the takeover plans are in direct contradiction with the terms of their joint venture agreement for BBH, which would require Carlsberg to sell its shares in the venture back to the UK-based brewer. The matter is set to go before the Arbitration Institute of the Stockholm Chamber of Commerce early next year to be decided on, with a vast financial prize riding on the verdict, if a deal cannot be successfully negotiated beforehand.

…

Bolivia: International sign-on statement to World Bank on Bolivia Investment Case

http://boliviarising.blogspot.com/2008/01/international-sign-on-statement-to.html

... seeking organizational signatures for the letter below to the World Bank President. Last May, the government of Bolivia took a bold step towards challenging the excessive and anti-democratic powers of global corporations by withdrawing from the World Bank's investment arbitration court. That court is now refusing to respect the Bolivian government's actions and allowing an egregious case brought by a European telecommunications company to proceed. It is extremely important for international human rights and democracy advocates to speak out now to block this case and pressure the World Bank to create an independent panel to examine the concerns raised around the world about a system that grants excessive rights to international investors....

See also:

CIADI/Telecom Italia: hands off Bolivia!

http://www.cadtm.org/spip.php?article2975

Once again, Bolivia is under attack by multinationals and the World Bank. In 2000, the people of Cochabamba, Bolivia took back their water system after it was privatized to US based Bechtel Corporation, and prices were hiked up to 300%. Bechtel struck back, suing Bolivia through the World Bank's International Centre for Settlement of Investment Disputes, or ICSID. But pressure from citizens and social organizations around the world succeeded in forcing Bechtel to back off - and the suit was finally dropped.

Greece: Hellenic Petroleum to receive 40 mln usd from FYROM for OKTA dispute settlement

01 January, http://www.forbes.com/afxnewslimited/feeds/afx/2008/01/02/afx4485253.html

Refiner Hellenic Petroleum announced that its has signed an agreement with the Former Yugoslav Republic of Macedonia (FYROM) to receive 40 mln usd in compensation for a dispute over its OKTA refinery, which is owned by its unit Elpet Valkaniki.

…

Nasdaq-Dubai deal gets U.S. security clearance

December 31, http://today.reuters.com/news/articleinvesting.aspx?
type=comktNews&rpc=33&storyid=2007-12-31T190042Z_01_N31576894_RTRIDST_0_NASDAQ-UPDATE-1.XML

The U.S. government has cleared a deal that will give Dubai's state-owned stock exchange a stake in Nasdaq, the U.S. stock exchange said on Monday. Nasdaq, which first made the announcement on Friday and then withdrew the notice saying it had been issued in error, said the federal approval allows it and Borse Dubai Ltd to proceed with a deal reached earlier this year.

…

Argentina: Santa Fe to revise tender rules for US$238mn aqueduct

December 28, http://www.bnamericas.com/news/waterandwaste/Santa_Fe_to_revise_tender_rules_for_US*238mn_aqueduct

Argentina's Santa Fe provincial government has decided to push back the tender process for a 720mn-peso (US$238mn) program to build a number of aqueducts, the minister for water, public services and the environment, Antonio Ciancio, said in a release.

Ciancio met with legislators to explain the government's decision to delay the process, saying that authorities need to revise the tender rules.

…

The Santa Fe government is currently facing the possibility of having to cover a US$310mn damages claim by former water service concessionaire Suez, as the French company filed a case with the International Center for Settlement of Investment Disputes (ICSID) after the province, unable to reach an agreement with shareholders, cancelled in February 2006 Suez's water concession contract.

Kuwaiti parliament passes bill to cut tax on foreign firms's profits

December 27, http://www.menafn.com/qn_news_story_s.asp?StoryId=1093179209

Kuwait's parliament passed a law yesterday slashing tax on net profits of foreign companies to 15 percent from 55 percent in a bid to attract more investment from abroad. The legislation, which has been under discussion for several years, will come into force once it is approved by the emir of the state, Sheikh Sabah Al-Ahmad Al-Sabah.

…

Pakistan: PIA to seek arbitration in dispute with Saudi prince

December 27, http://news.in.msn.com/international/article.aspx?cp-documentid=1164357

Pakistan International Airlines (PIA) is to seek arbitration for resolving its dispute with Saudi Prince Faisal bin Khalid bin Abdulaziz Saud over the sale of his one percent share in the airline's subsidiary PIA Investments Limited (PIAIL).The move comes after a New York court Wednesday dismissed the prince's lawsuit against the airline.

Pakistan's Dawn newspaper Thursday quoted PIA chairman Zaffar A. Khan as saying the airline would seek arbitration in accordance with the shareholders' agreement. The Saudi prince, who holds 7,200 shares in PIAIL, which owns and manages the Roosevelt Hotel in Manhattan and the Hotel Scribe in Paris, had in his lawsuit accused PIA of interfering with his attempt to sell his shares. Judge Naomi Reice Buchwald of the court of the Southern District of New York dismissed the plea.

…

Finland: Arbitral Award Related to the Sale of a Hotel in Russia is Negative for SRV

December 27, http://www.srv.fi/news_article?uutis_id=10568207

SRV Russia Oy and SRV International Oy (together "SRV"), subsidiaries of SRV Group Plc, have been engaged as defendants in arbitration proceedings in the Arbitration Institute of the Stockholm Chamber of Commerce, where the claimant has been the Danish company Nordrus Hotel Holdings A/S ("Nordrus"). The matter related to the construction of a hotel property for Nordrus. Nordrus did not take possession of the hotel and did not remit the purchase price.

SRV has now been informed of the arbitral award in the matter. According to the decision of the arbitral tribunal SRV is obligated to pay damages of USD 13.2 million together with interest as of December 31, 2006. In addition, the arbitral tribunal has obligated SRV to pay the legal fees and costs of the claimant. SRV books as expenses approximately 11.1 million euros.

The decision of the arbitral tribunal means, however, that the ownership of SRV to the hotel property is confirmed. The company believes that that the increase in value of the property, and income from the possible sale thereof, will cover a considerable portion of the damages awarded by the arbitral tribunal.

As a result of the arbitral award the 2007 results of operations of SRV are expected to be clearly lower than in the previous year.

SRV expects its annual turnover for 2007 to amount to approximately 550 million euros. The order book is expected to amount to approximately 540 million euros as of December 31, 2007.

…

Senegal: Anglo-American unit sues Senegal over iron ore contract

December 26, http://afp.google.com/article/ALeqM5g30pV1FAoN_pTgjCoC7FQvAxBE2A

A South African affiliate of mining giant Anglo-American is suing Senegal for 667 million dollars (460 million euros) for tearing up an iron ore extraction contract, the firm's lawyer said Wednesday. Kumba Iron Ore (KIO) accuses authorities in the west African country of "culpable behaviour" in the way it severed their contract in favour of one with steel giant Arecelor Mittal earlier this year, lawyer Boucounta Diallo said.

The warring parties have agreed to submit their dispute to the International Court of Arbitration, with KIO -- formerly known as Kumba Resources -- accusing Dakar of "breaking the contract in ... an unorthodox fashion."

…

Nigeria: EFCC Probes Iyabo Obasanjo

December 22, http://www.thisdayonline.com/nview.php?id=98625

The Economic and Financial Crimes Commission (EFCC) has commenced investigation of the N3.5 billion contract row involving Senator Iyabo Obasanjo-Bello, daughter of former head of state, Chief Olusegun Obasanjo, an Austrian company, M. Schneider Limited and one Prince Albert Awofisayo.

The commission said yesterday in a statement by its Head, Media & Publicity, Osita Nwajah, that following the submission of new facts before it by the petitioners, the EFCC re-opened an inquest into the matter with a view of determining whether a crime that falls within its purview has been committed in which case, the commission would take prompt action.

…

See also: Nigeria: Iyabo Obasanjo - EFCC Contacts Austrian Firm; Nigeria: Iyabo Obasanjo Named in N3.5 Billion Contract Row; Iyabo - blackmail or not; Does Iyabo Have Questions to Answer?; Court Papers Show Iyabo is 'Damilola Akinlawon'.

Canada accused of lumber pact violation

December 20, http://www.bangornews.com/news/t/news.aspx?articleid=157980&zoneid=12

Just slightly more than a year after signing a softwood lumber agreement, the United States and Canada are again at odds over the amount and price of Canadian lumber in the U.S. market. On Wednesday, representatives from The Coalition for Fair Lumber Imports traveled from Washington, D.C., to Maine to speak with the media on behalf of Maine lumber businesses who say Canada's low prices for softwood lumber — mostly spruce, pine and fir — are forcing them to reduce their prices drastically.

…

At a Dec. 12 arbitration hearing before an international mediation panel, the U.S. Department of Justice presented the lumber industry's case. U.S. attorneys representing the Canadian government responded in defense. According to the coalition's director, Zoltan van Heyningen, the hearing focused on a section of the softwood lumber agreement that requires Canadian lumber exporters to choose whether to pay export fees of up to 15 percent or pay a capped 5 percent fee and export less lumber.

…

Corn Products International Updates NAFTA Proceedings

December 19, http://money.cnn.com/news/newsfeeds/articles/prnewswire/AQW09419122007-1.htm

On October 21, 2003, Corn Products International, Inc. submitted, on its own behalf and on behalf of its Mexican affiliate, CPIngredientes, S.A. de C.V., a Request for Institution of Arbitration Proceedings (the "Request") against Mexico pursuant to Chapter 11 of the North American Free Trade Agreement ("NAFTA"). In the Request, the Company asserted that the imposition by Mexico of a discriminatory tax on beverages containing HFCS breached various obligations of Mexico under the investment protection provisions of NAFTA. The Company sought damages of not less than $325 million. The case was bifurcated into two phases, liability and damages, and a hearing on liability was held in July 2006.

On December 18, 2007, the Company received an order from the Tribunal indicating that it had completed its decision on the liability phase. Although the reasons underlying the decision are not yet available, the order makes it apparent that the Tribunal has found Mexico in breach of NAFTA. The Tribunal has ordered the parties to submit dates for briefing on the quantum of damages for a breach of Article 1102, National Treatment, and has indicated it intends to issue an order at the beginning of January 2008 setting a timetable for written and oral argument on the damages questions, with a hearing to be held prior to August 2008.

…

Ecuador withdraws from World Bank court for investment disputes

December 14, http://www.iht.com/articles/ap/2007/12/14/business/LA-FIN-Ecuador-World-Bank-Court.php

Ecuador announced Thursday that it will no longer recognize a World Bank court set up to resolve investment disputes. "The Republic of Ecuador will not allow itself to be subjected to the jurisdiction of the International Center for Settlement of Investment Disputes," a written statement from the Foreign Ministry said, noting it had informed the court of its decision in a letter last week.

…

ASIL Insights: ICSID Annulment Committee Rules on the Relationship between Customary and Treaty Exceptions on Necessity in Situations of Financial Crisis

Jürgen T. Kurtz, http://www.asil.org/insights/2007/12/insights071220.html

On 25 September 2007, an Annulment Committee of the International Centre for Settlement of Investment Disputes (ICSID) handed down a report heavily critical of the method of reasoning of an arbitral tribunal constituted in the aftermath of the 2001-2 Argentine financial crisis.[1] The 2005 Tribunal in CMS Gas Transmission Company v Argentina had ruled Argentina to be in breach of a 1991 Argentine-U.S. bilateral investment treaty (BIT) and awarded compensation of US$133.2 million to the complainant.[2] The CMS Tribunal rejected Argentina's defence invoking an exception in Article XI of the BIT. That provision authorizes a state party to take measures necessary for, inter alia, "the maintenance of public order" or "the protection of its own essential security interests".

The Annulment Committee found that the CMS Tribunal had made a "manifest error of law" in its interpretation of the exception in Article XI of the BIT.[3] According to the Committee, the Tribunal had mistakenly conflated the stringent customary principles on necessity (taken to be codified in Article 25 of the International Law Commission's Articles on State Responsibility)[4] with the terms of the treaty exception.

…

ASIL ILIB: International Centre for the Settlement of Investment Disputes: Grand River Enterprises et al v. United States (November 28, 2007)

http://www.asil.org/ilib/2007/12/ilib071228.htm#j3

ICSID rejected the challenge of the United States to an arbitrator serving under the UNCITRAL rules in a NAFTA proceeding. Professor James Anaya had been serving as an arbitrator in a NAFTA proceeding while simultaneously helping parties with procedures before the Inter-American Commission on Human Rights and the United Nations Commission on the Elimination of Racial Discrimination (CERD) which were in the processing of examining U.S. compliance with international human rights norms.

…

ASIL ILIB: International Court of Justice: Territorial and Maritime Dispute (Nicaragua v. Columbia) Preliminary Objections (December 13, 2007)

http://www.asil.org/ilib/2007/12/ilib071228.htm#j1

Nicaragua brought suit against Columbia December 6, 2001 in the International Court of Justice (Court) regarding a dispute over title to territory and to delimit the maritime jurisdiction between the nations. Nicaragua argued that it had sovereignty over the islands Providencia, San Andrés, Santa Catalina, as well as Roncador, Serrana, Serranilla, and Quitasueño keys. Columbia by contrast, denied that there was a controversy and contended that the Court lacked jurisdiction to hear the suit under both the Pact of Bogotá and Article 36(2) of the Court's statute.

…

New costs scales for ICC arbitration

http://www.iccwbo.org/court/arbitration/id18242/index.html

The Scales of Administrative Expenses and Arbitrator's Fees set forth in Appendix III to the ICC Rules of Arbitration, which have been in force since 1 July 2003, have been revised. From 1 January 2008, a new structure of rates will apply. The method of determining costs in ICC arbitrations remains unchanged, with the Court continuing to fix arbitrators' fees and administrative expenses on the basis of the amounts in dispute.

…

HKIAC: DotAsia Organisation Appoints the Hong Kong International Arbitration Centre as the Global Official Dispute Resolution Provider for the .Asia Sunrise Challenge Process

http://www.hkiac.org/HKIAC/pdf/Announcement/071221_DotAsia_E.pdf

DotAsia Organisation (DotAsia) is pleased to announce the appointment of the Hong Kong International Arbitration Centre (HKIAC) as the global official dispute resolution provider to handle disputes and challenges arising out of the launch of the .Asia domain.

Groupe Danone Media Statement Concerning the Dispute over Confirmation of Effectiveness of the Arbitration Clauses in Hangzhou

December 13, http://www.edubourse.com/finance/actualites.php?actu=34612

Recently, we have learned from a report in Caijing Magazine, that the Higher People's Court of Zhejiang Province has taken over the case concerning confirmation of legitimacy of an arbitration clause contained in Mr. Zong's Service Contract. This action was instituted by Mr. Zong Qinghou, Hangzhou Wahaha Group Co. Ltd. (the"Wahaha Group") and the others against Danone Asia Pte. Ltd., and which was previously heard (without providing an opportunity to Danone Asia to be heard on the merits or substance of the action) by the Intermediate People's Court of Hangzhou. According to this report, a special procedure will be adopted for this case, under which, the presiding judge may render a judgement, after internal review, without an open hearing, and such first-instance judgment will be the final one. We are highly concerned about this.

....

Investment Syllabus Project

One immediate result of the Second Columbia International Investment Conference, -What's Next in International Investment Law and Policy?- (October 30-31, 2007), was the launch of an international investment -syllabus project-. Prof. Bjorklund will be leading the project on behalf of the Columbia Program on International Investment (CPII), directed by Karl P. Sauvant.

The ultimate objective of the project is to construct a model syllabus for international investment law and make it available to institutions of higher learning throughout the world, especially in emerging markets. The first step in achieving this objective is to ascertain what classes are currently being offered and their content. Therefore, Prof. Bjorklund is collecting syllabi in the area of international investment law and related public policy issues, with a view to making them available on the CPII website. This will help students, scholars, and practitioners interested in the subject to know at a glance the menu of courses that are available around the globe. The second step will be a consultative process involving investment professionals, including academics, arbitrators, counsel, and government officials, to examine the syllabi gathered, identify lacunae, and discuss different models for investment law instruction. Finally a model syllabus for a course on international investment law will be put together.

If you would like to send the syllabus of any international investment law and policy course (or courses) that you may be teaching, with the understanding that it will be posted on the CPII website, please contact Prof. Bjorklund. Please be sure that your name and affiliation are on the syllabus. In addition, it would be very helpful if you could help with identifying the names and institutional affiliations of other professors teaching courses in this area.

Andrea K. Bjorklund
University of California, Davis, School of Law
400 Mrak Hall Drive
Davis, CA 95616 USA
(ph) +1 530-752-5773
(fax) +1 530-754-5311

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: The resolution of disputes under international construction contracts 24-25 January 2008

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

The next conference co-organized by ICC and FIDIC will be hosted by ICC Monaco on 24-25 January 2008. The conference will provide comprehensive coverage of ICC dispute resolution procedures in the construction sector and latest information on FIDIC forms, plus a look at construction projects in Monaco.

…

ICC: The current state of international arbitration and a vision of the future - 31 January

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

A conference taking stock of international arbitration will be held in New York on 31 January 2008. Bringing together practitioners, academics and institutional representatives, the event will address some of the most fundamental questions facing arbitration in the modern world economy.

…

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

PODCASTS

IDN podcast: Dispute Clauses for Russia

Dispute Clauses for Russia, Tim Hardy & Irena Vanenkova

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.

IDN podcast: Mediating with Arbitration Institutions: The ICDR and the ICC

Discussion with Melanie Meilhac (ICC) and Mark Appel (ICDR).

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.

MOVES / JOBS

New appointments to ICC Court

http://www.iccwbo.org/court/arbitration/id18362/index.html

The ICC International Court of Arbitration welcomes two new members and a new alternate member to its ranks, following appointments made by ICC's World Council at its meeting in Paris on 30 November 2007. Mr Philip Yang and Mr Audley Sheppard were appointed members for Hong Kong and New Zealand respectively, and Mr Gideon Fisher alternate member for Israel.

…

Lovells has announced the arrival of Senior Consultant Richard Tan and his team to the Singapore office

http://www.lovells.com/Lovells/MediaCentre/PressReleases/Lovells+adds+International+Arbitration+team+in+Singapore.htm

Continuing expansion of the Asia dispute resolution practice sees leading International arbitrator and team join Lovells' Singapore office Lovells has announced the arrival of Senior Consultant Richard Tan and his team to the Singapore office. Of counsel, Chung Nian will assist Richard in developing the international arbitration practice in Singapore and South East Asia together with associate, Cheryl Fu.

…

BOOKS

Damages in Private International Law

J. Gotanda

John Gotanda's booklength monograph, "Damages in Private International Law," was recently published in volume 326 of Recueil des cours (Martinus Nijhoff Publishers 2007). It is based on his lectures given at the Hague Academy's 2007 Private International Law Session and discusses possible economic remedies in disputes between transnational contracting parties. The monograph covers damage awards for breach of contract, compensatory interest, attorneys' fees and costs, and punitive damages (exemplary relief). It examines relevant national laws, treaties and conventions, uniform laws, and court and tribunal decisions.

The International Judge: An introduction to the men and women who decide the world's cases

Oxford University Press, December 2007, 232 pages, £24.99
by Daniel Terris, Cesare Romano, and Leigh Swigart

Recent OGEMID postings have debated the relative merits of international arbitrators and tenured international judges. This new book provides a balanced look at the international judges, considering both their strengths and their weaknesses.