issue #06, week 08. 21 February 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

Indonesia: Newmont To Seek Arbitration Over Indonesia Contract

February 15, http://money.cnn.com//news/newsfeeds/articles/djf500/200802150548DOWJONESDJONLINE000491_FORTUNE5.htm

U.S. mining giant Newmont Mining Corp. (NEM) will file for arbitration to settle a dispute with the Indonesian government over the divestment of a 10% stake in its Indonesian subsidiary, said a senior Newmont executive Friday. But Newmont will also continue with current divestment negotiations with the government, said Russell Ball, Newmont's Chief Financial Officer.

"Even if we file for arbitration, it does not mean that we won't continue to discuss and negotiate divestiture. It's merely a way to help preserve our rights while at the same time removing this very short window to complete a transaction that's worth hundreds of millions of dollars," he said.

The Indonesian government handed Newmont a Feb. 22 deadline to divest a 10% stake in its Indonesian subsidiary, PT Newmont Nusa Tenggara. The order was issued on Feb. 11. Indonesia initially said it would cancel Newmont's contract to operate in the country should the company fail to meet the deadline but has since retracted that statement to say that any cancelation of the contract would be done after it reviews the results of a fact-finding mission to ascertain why Newmont was unable to divest the stake.

Newmont was supposed to have divested the 10% stake by the end of last year. In total, it is required to sell 51% of its stake to local investors in stages.

…

Trinidad and Tobago: $120m spent on incomplete Oncology Centre

http://www.trinidadexpress.com/index.pl/article_news?id=161279121

Over $100 million has been spent on the construction of the National Oncology Centre, which, to date, remains incomplete, Health Minister Jerry Narace said yesterday. He added that the entire project had been riddled with problems from the contractors, who made requests for more money.

…

Narace said based on several issues of unsatisfactory performance, the Government sought to disengage the services of CCC-CCCI with effect from October 2007. CCC-CCI later submitted proposals for an extension of 30 months at an increased cost of $96 million.

"This proposal was rejected by the Government and CCC-CCI was offered an extension to complete the work remaining under the contract, with no additional cost being entertained by the Government."

Narace said CCC-CCI refused to accept Government's decision and has filed for arbitration proceedings in the London Court of International Arbitration (LCIA) to contest the decision. The resolution is still ongoing. The cost of the CCC-CCI contract is $180,000,000 and $83,654,197 has been expended to date.

…

London arbitration body in Dubai JV launch

February 18, http://www.legalweek.com/Articles/1097159/London+arbitration+body+in+Dubai+JV+launch.html

The London Court of International Arbitration (LCIA) and the Dubai International Financial Centre (DIFC) have launched a joint venture in the Middle East, it was announced yesterday (17 February).

The DIFC LCIA Arbitration Centre aims to boost the profile of the emirate as a venue for international arbitration and mediation services. The new centre will have access to the LCIA's database of arbitrators and will closely follow LCIA rules.

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DIFC body set to be the final word in arbitration

February 21, http://www.business24-7.ae/cs/article_show_mainh1_story.aspx?HeadlineID=2608

The Dubai International Financial Centre (DIFC) has teamed up with the London Court of International Arbitration (LCIA) to set up the DIFC LCIA Arbitration Centre. The move was heralded as another step towards making the DIFC a comprehensive financial jurisdiction.

Deputy Ruler of Dubai Sheikh Maktoum bin Mohammed bin Rashid Al Maktoum said: "This is a landmark step for Dubai, reaffirming its status as one of the world's leading business hubs and creating an efficient working environment for local international companies to prosper."

Alec Emmerson, a Dubai-based partner with international law firm Clyde & Co, sits on the DIFC court users committee, and is part of the legislative subcommittee that reviewed the new DIFC Arbitration law. Emmerson explained to Emirates Business the rationale for creating the new law and centre.

See also "Dubai on the tight track, says top arbitration specialist" here http://www.ameinfo.com/147222.html

Dubai: DIFC seeks feedback on Arbitration Law revisions

February 17, http://www.gulfnews.com/business/Banking_and_Finance/10190356.html

The Dubai International Financial Centre (DIFC) on Saturday issued consultation papers to seek comment on a new Arbitration Law, which seeks to replace the existing law. The proposed law, which contains a significant number of enhancements, is designed to accommodate and facilitate the setting up of an Arbitration Centre, DIFC said in a statement.

The changes, drafted in consultation with prominent arbitration practitioners, are aimed at making the Arbitration Law practical and comprehensible to all arbitration practitioners. The proposed arbitration framework, in accordance with international arbitration practices, will make the system simpler, more manageable, and therefore more attractive to the international community.

…

Cambodia To Form Business Dispute Court By 2009

February 18, http://www.bernama.com.my/bernama/v3/news.php?id=314504

The Cambodian Ministry of Commerce has finalised a 40-article draft law creating an independent commercial court and arbitration body, said China's Xinhua news agency quoting a local media report Monday. Mao Thora, Under-secretary of State for the Commerce Ministry, has said that it is hoped that the specialized court for business disputes will be formed by 2009, the Cambodia Daily newspaper said.

Many are hoping that a commercial court would improve Cambodia's capacity to fairly judge disputes in the business sector, and thus move the country further on the road toward a sound market economy, it said.

In a country where the justice system is weak, Mao Thora said the specialized commercial court is needed to ensure investor confidence. "Investors do not want to filed complaints about business in the civil court. They need a specific court," he was quoted as saying.

…

Is $13 Million Arbitration Award a Harbinger for Video Game Industry?

http://www.law.com/jsp/article.jsp?id=1202815256802

Video game publisher Ubisoft Entertainment has won a $13.2 million judgment against MGA Entertainment in arbitration, a notable amount for a dispute that never went to trial.

"It's accepted knowledge in the legal community that arbitration is usually smaller awards, more tempered, and not the big awards you get in front of a jury," said Stephen Smith, the Greenberg Glusker partner representing Ubisoft. "This award breaks that mold."

Along with being a significant judgment for arbitration, the decision also underscores the growing importance of the video game industry and its potential for more multimillion-dollar litigation. "It's a helpful reminder of what's to come," said Roxanne Christ, an L.A.-based partner with Latham & Watkins who focuses on intellectual property and technology. "Real money is at stake as the industry matures, and arbitration isn't the nirvana that everyone presents it as."

…

South Africa: Arbitration of SA iron-ore dispute yet to get under way

Februari 13, http://www.engineeringnews.co.za/article.php?a_id=126909

The arbitration process between steel producer ArcelorMittal South Africa and iron-ore miner Kumba Iron Ore (KIO), over the right of the steel...

The arbitration process between steel producer ArcelorMittal South Africa and iron-ore miner Kumba Iron Ore (KIO), over the right of the steel company to participate in the miner's South African expansion programmes, has not yet formally assembled, but should reach resolution later this year, outgoing Arcelor Mittal South Africa CEO Rick Reato said on Wednesday.

The dispute had arisen as a result of a difference of opinion over a 2001 unbundling agreement, concluded by the then Iscor and the then Kumba Resources, which enabled the steel producer to receive 6,25-million tons a year of iron-ore from KIO on a cost-plus basis.

…

Africa: China Outdoes Europeans in Congo

February 8, http://allafrica.com/stories/200802090006.html

The massive deal that China signed with the Democratic Republic of Congo last year is not the "second colonisation" that some Europeans allege it is. The agreement appears, in fact, a promising way to kick-start an economy. The agreement on developing infrastructure through "resource-backed finance" certainly gives China a lot of influence in a country where Europeans are used to dealing the cards. European countries now look with a certain envy at what China has achieved.

…

The Chinese have hedged their position quite aggressively. The first profits will be used to repay the mining investment, something that is typical of most private joint ventures with Gécamines. The agreement also says that "the Congolese government has to guarantee the safety of the investments, and the repayment of the infrastructural works." Any disputes would be settled by the arbitration tribunal of the International Chamber of Commerce in Paris, and not through Congolese courts, that have a reputation of being corrupt.

…

Article: The Story of a Dutch Letterbox which Could Cost Bolivia a Fortune

Corporate Europe Observatory, February 2008, http://www.corporateeurope.org/bolivia-eti.html

The Netherlands has long been established as a place to do business and as more and more companies are finding out, all you need 'to do' business there is little more than a letterbox. So what are the advantages of owning a letterbox in the Netherlands? The answer is simple: it helps corporations to avoid paying taxes elsewhere and enables them to take advantage of the corporate-friendly Bilateral Investment Treaties (BITs) the Netherlands has with other countries.

The Netherlands is home to about 20,000 of these letterbox companies and this number is rising, on average, by 5 every day. One such company taking advantage of this corporate-friendly environment is Euro Telecom Italia N.V. (ETI), a wholly owned subsidiary of Telecom Italia SpA. ETI has no substantial commercial presence in the Netherlands, nor staff[4], but is currently attempting to take Bolivia to the International Center for the Settlement of Investment Disputes (ICSID), an arbitration tribunal at the World Bank, using the BIT the Netherlands signed with Bolivia in 1995. Indeed, the BIT between the Netherlands and Boliva contains some harsh conditions not usually seen in BITs: the term 'investments' has a very wide interpretation and the BIT also applies to investments made even before it was signed into force - to name just two of its draconian conditions.

…

Jakarta to seize gas field in Exxon dispute

February 20, http://www.ft.com/cms/s/0/79091b66-df3e-11dc-91d4-0000779fd2ac.html?nclick_check=1

Indonesia on Tuesday said it would seize Asia's largest undeveloped gas block from ExxonMobil and ask Pertamina, the state-owned energy group, to prepare a feasibility study to take over the field.

The latest move in a three-year dispute between Jakarta and the US energy group was made after talks with Exxon about the Natuna D-Alpha field became deadlocked over tax issues, the extension of a contract and how to split the gas, said Purnomo Yus­giantoro, Indonesia's energy minister.

…

Ramírez proposes Exxon Mobil to go back to World Bank arbitration

February 19, http://english.eluniversal.com/2008/02/19/en_eco_art_ramirez-proposes-exx_19A1373063.shtml

Venezuela proposed US oil major Exxon Mobil to go back to the International Center for Settlement of Investment Disputes (ICSID) -a body of the World Bank- and drop the lawsuits it filed simultaneously with London and New York courts, Tuesday said Venezuelan Minister of Energy and Petroleum Rafael Ramírez.

"We have listened to some messages Exxon sent. We are proposing to go back to the arbitration under" ICSID, where the two parties designated their judges last December, with the installation of the court still pending, AFP reported.

"The party that exceeded the actions provided for under the arbitration was Exxon, as it sought a freezing injunction" of Venezuela's state oil firm Pdvsa's assets for up to USD 12 billion. The injunction was awarded by London and New York courts. According to Ramírez, such parallel actions "are outside the frame of arbitration," he stressed.

…

Pdvsa risks embargo if court order is disregarded

February 19, http://english.eluniversal.com/2008/02/19/en_eco_art_pdvsa-risks-embargo_19A1372439.shtml

Venezuela's oil conglomerate has the right to reply to the motion Exxon Mobil filed with the International Chamber of Commerce. A freezing injunction the England High Court issued against Pdvsa's assets -following a motion filed by US oil firm Exxon Mobil- affects the assets the state holding may own directly and indirectly

A notice accompanying an order issued by England High Court' commercial court last January 24 to freeze Venezuela's oil giant Pdvsa's assets -following a motion filed by US oil major company Exxon Mobil- warns that if Pdvsa fails to comply with the order, it may be accused of contempt of court and may be imposed a fine or its assets may be subject to a lien.

…

Chávez ponders tax on "unexpected oil profits"

February 18, http://english.eluniversal.com/2008/02/18/en_eco_art_chavez-ponders-tax-o_18A1370289.shtml

Amidst a conflict between the Venezuelan State and US oil major Exxon Mobil, President Hugo Chávez said it is pondering the possibility to levy a tax on "unexpected oil profits" in Venezuela. "I want the rationale to be submitted to me soon," Chávez asked his economic cabinet during his weekly radio and television show Aló Presidente (Hello, President).

The intended impost would be levied on companies recording surplus profits from oil production or marketing, for example attributable to soaring oil prices in world markets that are not related to higher production, transportation or similar costs, but to the market dynamics or natural causes, among others.

"If oil prices continue to climb, within the range of USD 80-100, we need to impose this tax, and we need to make it higher as the price soars."

…

Exxon: Venezuela Row About Government Honoring Contract

February 18, http://money.cnn.com/news/newsfeeds/articles/djf500/200802180952DOWJONESDJONLINE000245_FORTUNE5.htm

Exxon Mobil Corp.'s (XOM) legal dispute with Venezuela is over the country's failure to abide by its terms and obligations, ExxonMobil Chairman Robert Olsen said Monday. "This is an issue about contract sanctity that provides the basis for all parties to know their rights and responsibilities," Olsen told reporters on the sidelines of an energy conference here.

…

Olsen later told Dow Jones Newswires that Exxon was still hopeful that a solution could be found between the company and the Venezuelan government. "The arbitration panel is doing its work...We're hopeful an amicable solution can still be found between us and the government," he said.

…

Venezuela politics: Sabre-rattling

February 13, http://www.viewswire.com/index.asp?layout=VWArticleVW3&article_id=1323040917&refm=vwHome&
page_title=Latest%20analysis&rf=0

FROM THE ECONOMIST INTELLIGENCE UNIT: A dispute between the government of President Hugo Chávez and global oil company ExxonMobil has heated up in the last week, with Mr Chávez threatening to halt crude supplies to the US in retaliation for Exxon's legal actions abroad. Whether or not the Venezuelan president follows suit—which is unlikely—the conflict highlights the growing incidence of tensions between foreign oil producers and increasingly powerful national energy companies, both in Venezuela and elsewhere in Latin America.

…

Exxon Is Demanding Ten Times Its Investment, Says Venezuelan Oil Minister

February 17, http://www.netnewspublisher.com/exon-mobil-and-venezuela/

The maximum compensation ExxonMobil should receive for its nationalized 41.6% stake in the Cerro Negro Orinoco River belt project is $1.2 billion, the Venezuelan Minister of Energy and Petroleum and President of the Venezuelan state oil company PDVSA, Rafael Ramírez, announced yesterday. This is a tenth of Exxon's claim to $12 billion of PDVSA's assets, which were temporarily frozen after the transnational oil company won a series of court orders in Britain, the Netherlands, and the Dutch Antilles earlier this month.

In a speech before the Venezuelan National Assembly, the minister argued that Exxon's $12 billion compensation claim is exaggerated, revealing that $5 billion was the largest amount to which the company had ever aspired in previous negotiations. This prompted an Exxon Mobil lawyer to complain that it was inappropriate to have revealed such information.

…

USD 4.2 billion at stake in Exxon-Pdvsa dispute

February 15, http://english.eluniversal.com/2008/02/15/en_eco_art_usd-4.2-billion-at-s_15A1366895.shtml

Minister Ramírez advised the National Assembly of the legal actions Exxon Mobil has filed against Pdvsa and the Bolivarian Republic of Venezuela. According to Rafael Ramírez, CEO of state-run oil corporation Pdvsa, and Minister of Energy and Petroleum, "in a few hours" they are to disclose an agreement with Italian Eni, which decided to discontinue operations in Orinoco belt following Venezuela's nationalization drive in 2007

…

Venezuela requests help from U.S. senator - Ambassador asks Lugar to get freeze set aside in Exxon Mobil case

February 15, http://www.chron.com/disp/story.mpl/headline/biz/5546659.html

Venezuela's ambassador to the U.S. has asked Sen. Richard Lugar to press Exxon Mobil Corp. to drop legal measures that have frozen $12 billion in assets worldwide.

"Through tactics that can only be compared with the very discredited strategy of pre-emptive war, Exxon Mobil has clearly violated the terms of the arbitration process," Bernardo Alvarez, Venezuela's ambassador to the U.S., said in a letter to the Indiana Republican that was released by the embassy Friday. Lugar is the top Republican on the Senate Foreign Relations Committee.

…

Note the letter is available on Transnational Dispute Management as are a large number of other documents related to this case.

U.S. Backs ExxonMobil's Bid for Compensation from Venezuela - Company deserves a just and fair compensation for their assets says U.S.

February 14, http://www.industryweek.com/ReadArticle.aspx?ArticleID=15809

The U.S. State Department said Feb. 13 it "fully supports" ExxonMobil's bid to receive a fair compensation package for its assets in a dispute with Venezuela. Venezuela's state petroleum company PDVSA said Feb. 12 it suspended oil supplies to ExxonMobil in retaliation for the U.S .energy giant's securing court orders to freeze billions of dollars in global PDVSA assets.

…

Pdvsa faces two arbitration actions arising from claims made by Exxon

February 14, http://english.eluniversal.com/2008/02/14/en_eco_art_pdvsa-faces-two-arbi_14A1364679.shtml

A court of New York ratified the freezing of US$ 300 million. The fight between the Venezuelan state-owned company Petróleos de Venezuela (Pdvsa) and US oil company Exxon Mobil will be a long one. The US oil company seeks to ensure - by different means - the compensation it claims is owed to them, and Pdvsa affirms that they will put up a fight.

The Minister of Energy and Petroleum and president of Pdvsa, Rafael Ramírez, noted that Exxon Mobil presented two requests for arbitration for the same dispute. The first action is before the International Center for the Settlement of Investment Disputes (ICSID), and the second measure has been raised to the International Chamber of Commerce.

And, precisely, the latter request is the one, which, in part, allowed for actions to be presented in courts of New York, London, and Holland, which allowed for the freezing of assets and accounts amounting to US$ 12.3 billion.

…

Ramírez: OPEC is advising Venezuela in dispute with Exxon Mobil

February 13, http://english.eluniversal.com/2008/02/13/en_eco_art_ramirez:-opec-is-adv_13A1362923.shtml

The Organization of Petroleum Exporting Countries' legal department is providing advice to Venezuelan state-run oil firm Pdvsa to face a legal dispute with US oil major Exxon Mobil, said Rafael Ramírez, CEO of the Venezuelan holding.

"During the latest OPEC meeting, we advised our country was facing this situation with ExxonMobil. We brought this issue to the legal department of OPEC and they have been providing legal advice to face this situation," Ramírez said in an interview with a television channel.

…

Venezuela: Sovereignty and Business

February 13, http://www.escambray.cu/Eng/news/Wvenezuela0802131145.htm

Venezuela's willingness to negotiate oil projects with foreign companies is based on the country's sovereignty over natural resources, an inviolable principle in any contractual relation among companies.

…

Nicolás Maduro: Venezuela Willing to Confront the US

February 12, http://www.escambray.cu/Eng/news/Wmaduro080212858.htm

Caracas (PL) - Venezuela is strongly prepared to confront any onslaught against the country by the United States Empire, said chancellor Nicolas Maduro.

At the end of a coordination meeting with Argentine representative the Head of Foreign Affairs recalled that Venezuela is an independent and sovereign state that has been sighted in the crosshairs of "the powerful opponent and enemy clan governing the United States."

He added that the US government "has not given up nor will give up trying to destabilize our country and return us to the position of oil dependent colony."

…

Judge: Exxon Mobil Likely to Win Dispute

February 13, http://www.reflector.com/money/content/shared-gen/ap/Finance_General/Venezuela_US_Oil.html

A federal judge in Manhattan on Wednesday confirmed the freezing of $300 million in cash held by Venezuela's state-run oil company, finding it probable that Exxon Mobil Corp. will win its legal battle against the company.

Exxon Mobil is challenging Petroleos de Venezuela SA, or PDVSA, over compensation for the nationalization of one of four heavy oil projects in the Orinoco River basin, one of the world's richest oil deposits.

…

PODCASTS

A Proposal for Reforming International Arbitration

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.

Join Mike for a conversation with Debevoise & Plimpton partner David W. Rivkin about the "Town Elder" international arbitration reform model.

EVENTS

Specialised Arbitration & Advocacy Skills in International Oil & Gas Disputes
Seminar Presenters: Professor T.W. Walde; Tim Martin, Esq; Arif Hyder Ali, Esq; William H. Knull III, Esq and others.
September 08 - 12. Hilton Hotel, Dundee
More information is available at the CEPMLP website (PDF)

Protection of Foreign Investments through Modern Treaty Arbitration - Diversity and Harmonisation

In an ever more globalised world, increasingly based on private sector investments in foreign economies, the issue of investment protection is becoming increasingly important. Over recent decades, the business and legal communities have seen legal protection through arbitration based on bilateral and multilateral investment treaties gaining importance. This conference will offer a framework within which to address many of the issues surrounding modern investment arbitration, both with regard to jurisdictional issues and substantive standards of protection available to an investor.
March 7 2008, Zurich
More information at the website of Swiss Invest Forum

Frankfurt Investment Arbitration Moot Court: Halle-Wittenberg wins 2008/2009 competition; Best Advocate comes from St Gallen University

The 2007/2008 Frankfurt Investment Arbitration Moot Court was held on 14-16 February 2008 at the premises of the Frankfurt International Arbitration Center (FIAC). In connection with the Moot, a roundtable of 50 arbitration specialists, state-representatives and investors discussed the question of "Access to Travaux Préparatoires in Investment Treaty Arbitration". The discussions were led by Emmanuel Gaillard, Antonio Parra and VV Veeder.

In the first semi-final, St Gallen (Switzerland) prevailed over Freiburg (Germany) before a tribunal composed of Veijo Heiskanen (President), Ahmed El-Kosheri and Kaj Hobér. In the second semi-final, Hans van Houtte (President), Michael Collins and Antonio Parra, saw Halle-Wittenberg (Germany) come up on top of Melbourne (Australia).

In a closely contested moot final, the teams of St Gallen and Halle-Wittenberg crossed swords in front of Emmanuel Gaillard (President), Karl-Heinz Böckstiegel and VV Veeder. Halle-Wittenberg carried the day. Judge Bruno Simma and Emmanuel Gaillard awarded the prize for Best Advocate to Lukas Rusch of St Gallen.

The Frankfurt Investment Arbitration Moot Court is the first student moot court to concentrate on the law of investment protection. Its unique format with an emphasis on oral advocacy helps students to develop key skills for their future careers. This year's case discussed the consequences of a potential state succession on the rights of investors in the affected area.

The Frankfurt Investment Arbitration Moot Court is organised by the Wilhelm Merton Centre for European Integration and International Economic Order of Johann Wolfgang Goethe University. This year's Moot was sponsored by Hughes Hubbard Reed, Mannheimer Swartling, Fraport AG, Oxford University Press and Dewey & LeBoeuf.

The 2008/2009 Frankfurt Investment Arbitration Moot Court will be held on 5 - 7 March 2009.

Guest Lecture: The Effect of Illegality on the Arbitration Agreement - Dr. Richard Kreindler - April 3

http://frg.sin-online.nl/channel/pub/msgview.html?msgid=53590

Dr. Richard Kreindler will be giving a talk on the interesting legal issues that arise where matters of arbitration are tainted by illegality. This is an increasingly important question as the scope of pubic regulation extends further and further into areas traditionally regarded as belonging to the private sphere. Dr. Kreindler's talk will examine the extent to which the private agreement of parties to take matters outside national court systems is affected by allegations of fraud, corruption or other criminal activity.

…

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

Stephen York and Shai Wade join Reed Smith disputes practice

February 21, http://www.legalweek.com/Articles/1098184/Reed+Smith+disputes+practice+boosted+by+double+partner.html

Reed Smith Richards Butler has strengthened its London disputes practice with the hire of two international arbitration partners. Stephen York and Shai Wade joined the firm this week (18 February) from the London office of Kilpatrick Stockton.

Both York and Wade have experience of large-scale arbitrations and have represented clients in front of bodies including the International Chamber of Commerce and the United Nations Commission of International Trade Law.