issue #08, week 10. 05 March 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.
Comments, suggestions, news?
If you have news, comments or suggestions feel free to send them.
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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 Wälde - 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
Coalition for Fair Lumber Imports Comments on Split Arbitral Decision Regarding U.S.-Canada Softwood Lumber Agreement
March 4, http://www.cnw.ca/fr/releases/archive/March2008/04/c8655.html
The Coalition for Fair Lumber Imports expressed support for a London Court of International Arbitration (LCIA) ruling that Canada has violated U.S.-Canada Softwood Lumber Agreement commitments relating to export quota volumes. The Coalition expressed disappointment with a separate ruling relating to export tax levels applicable to British Columbia and Alberta shipments.
The tribunal will now decide on an appropriate remedy to cure Canada's breach, with remedy proceedings expected over the next few months.
See also Canada claims partial victory on softwood arbitration ruling, http://www.cbc.ca/canada/british-columbia/story/2008/03/04/softwoodruling.html and Lumber limbo: Either way, Canada will get the short end of the stick, http://www.theglobeandmail.com/servlet/story/RTGAM.20080303.wcomment0304/BNStory/National/home
Indonesia takes Newmont Nusa to court over foreign ownership dispute
March 4, http://www.antara.co.id/en/arc/2008/3/4/indonesia-takes-newmont-nusa-to-court-over-foreign-ownership-dispute/
The Indonesian government is suing PT Newmont Nusa Tenggara (NNT) in an international court of arbitration for failing to abide by a mandatory requirement to reduce the foreign ownership of the company within a stipulated time-frame, said Energy Minister Purnomo Yusgiantoro Monday.
"As a big sovereign country, Indonesia is taking the arbitration option because Newmont has not displayed good faith," Yusgiantoro was quoted by Thomson Financial as telling reporters.
He said if the court of arbitration rules in favour of a letter of default issued by the Indonesian government on February 11, NNT's contract to mine copper and gold in the Sumbawa island could be cancelled.
...
Etno seeks EU arbitration to resolve Entel conflict
March 4, http://www.telegeography.com/cu/article.php?article_id=22031
BNamericas reports that Bolivian newspaper El Diaro says that the European telecommunications network operators' association (ETNO) has asked for the European Union (EU) to take an active role in the ongoing dispute over renationalisation of Bolivian telco Entel. The dispute arose when the Bolivian government attempted to strongarm Telecom Italia into selling all or part of its 50% stake in Entel.
...
Grenada: Bowen to Face Trial in US Court
March 1, http://www.belgrafix.com/gtoday/2008news/Mar/Mar01/Bowen-to-Face-Trial-in-US-Court.htm
Fresh documents have been filed in a New York court giving details of the connection between Grenada's Deputy Prime Minister, Gregory Bowen and a group of questionable Russian oil executives.
The documents were field as part of a ruling from a judge in which he ordered Bowen to face trial in the United States with four Russians as part of a dispute with american oil tycoon, Jack Grynberg.
Minister Bowen had earlier claimed victory in the case on the grounds that Grynberg and his company, RSM Production Corporation had filed the suit out of time.
American attorney, Daniel Abrams in keeping with the court order filed the suit on Monday in court to give effect to the case against the Number Two Man in St. George's and Russians, Mikhail Fridman, Len Blavatnik, Lev Korchagin and Lev Model.
...
See also http://www.belgrafix.com/gtoday/2008news/Mar/Mar01/The-Scheme-Begins.htm
Italy's Eni to invest $4bn in Venezuela
February 29, http://www.reuters.com/article/companyNews/idUSN2940009020080301?pageNumber=2&virtualBrandChannel=0
Eni, the Italian oil and gas group, plans to invest $4bn in Venezuela, making the biggest commitment by a western oil company since President Hugo Chávez began to take control of the country's oil projects in 2005. Eni has reached agreement in principle with PDVSA, Venezuela's state-owned oil company, to develop an area of the Orinoco belt - on some measures the world's largest oil reserve.
...
Leading Figures Speak Out on ExxonMobil Hostile Action Against Venezuela
http://www.vicuk.org/index.php?option=com_content&task=view&id=264&Itemid=30
In a letter published in the Guardian (28 Feb), over 50 prominent figures representing a wide section of British society have signed a statement, organised by the Venezuela Information Centre, raising concern over legal action taken by oil giant ExxonMobil to prevent the Venezuelan government from exercising its right to control its natural resources.
They have urged ExxonMobil to work for "the amicable settlement" of its dispute with the Venezuelan state oil company PDVSA through international arbitration. The statement is published as Venezuelan state oil company PDVSA goes to the High Court to appeal an English court's decision to freeze its assets in England and Wales.
...
Pdvsa: London lacks jurisdiction in Exxon Mobil case
February 29, http://english.eluniversal.com/2008/02/29/en_eco_art_pdvsa:-london-lacks_29A1396319.shtml
Venezuelan state-run oil corporation Pdvsa Thursday in London challenged the British jurisdiction to issue an injunction to freeze up to USD 12 billion in assets owned by the conglomerate, at the request of US oil major Exxon Mobil. "The British justice has no jurisdiction" in a dispute between Exxon Mobil and Pdvsa because "it lacks any links" with the case, Pdvsa's lawyer Gordon Pollock said Thursday, during the first day of a hearing on the Venezuelan oil giant's motion to lift the freezing of assets, AFP reported.
...
Venezuela takes dispute with Exxon Mobil to London
February 26, http://english.eluniversal.com/2008/02/26/en_eco_art_venezuela-takes-disp_26A1388201.shtml
Venezuela next Wednesday in London is hitting back in a legal dispute with US oil major Exxon Mobil, as the country is asking the British justice to revoke an freezing injunction affecting up to USD 12 billion in assets owned by state oil firm Pdvsa -an order issued by a London court at the request of the US oil corporation.
A judge in British High Court is to begin assessing next Wednesday the Venezuelan petition to lift the freezing of Pdvsa's assets. The injunction was issued by a London court last February 7, John Fordham, defense attorney of Pdvsa, told AFP on Tuesday.
...
Q&A with Rostislav Pekar: Consider arbitration carefully
http://www.cbw.cz/en/pekar:-consider-arbitration-carefully/7063.html
Arbitration proceedings between Japan's investment bank Nomura and the Czech Republic have ended with a settlement, but other arbitrations are still going on outside the media glare.
Rostislav Pekar, attorney for the Czech branch of the London law office of Squire, Sanders & Dempsey, talked to CBW about the risks and costs companies should take into consideration before entering into arbitration.
Pekar was a member of the team that represented the Czech Republic in its dispute with Nomura and other cases. According to Pekar, no company considers the issue of arbitration before engaging in foreign investment. On the other hand, he is not aware of any case in which arbitration did not have a lot of money at stake.
Questions:
- How financially demanding is it for a company to enter into international arbitration against a state?
- In general, what are the costs of arbitration, compared with a trial?
- What other factors influence a company's decision to enter into arbitration?
- Are you referring to the dispute between U.S. oil company ExxonMobil and Venezuela, where President Hugo Chávez 'shut the valve' on Exxon's access to oil?
- According to a 2006 study by PricewatehouseCoopers, 73 percent of companies prefer international arbitration to the Czech court system. This somewhat contradicts what you have been saying—that companies choose arbitration only as the last option…
- What reasons lead companies to make such a decision?
- Sometimes it takes 12 or 13 years before a decision is reached. Do you really find that faster?
- Could this also be because national courts offer many forms of appeal?
- Why is it that arbitration tends to involve sums in the billions?
- Why are many companies suing the Czech Republic in international arbitration?
- Are all countries open to arbitration?
- Sometimes it seems as if certain companies revel in arbitration, as if they believed in advance that they would profit from it. What is your opinion?
- Petr Kratochvíl from the Ta Fantastika theater filed arbitration against the Czech Republic. Kratochvíl has stated that he was not interested in money, but to show that he was morally right. Is this a common occurrence in arbitration?
- What interesting cases from the past few years do you know of?
...
Fact Sheet: United States-Rwanda Bilateral Investment Treaty
http://www.whitehouse.gov/news/releases/2008/02/20080219-8.html
Today, President Bush and Rwandan President Kagame signed the United States-Rwanda Bilateral Investment Treaty (BIT). The BIT will enter into force after ratification by the United States and Rwanda, following approval of the Treaty by the United States Senate and the Rwanda Parliament. This is the first BIT concluded between the United States and a Sub-Saharan African country since 1998.*
The United States-Rwanda BIT will provide legal protections for U.S. and Rwandan investors that underscore the two countries' shared commitment to open investment and trade policies. These protections include nondiscriminatory treatment, free transfer of investment-related funds, prompt, adequate, and effective compensation in the event of an expropriation, and transparency in governance. The BIT also gives investors the right to bring investment disputes to neutral, international arbitration panels.
The United States-Rwanda BIT will reinforce the Rwandan government's achievements in rebuilding the Rwandan economy after the 1994 genocide.
- The Rwandan government has opened its economy, improved its business climate, and embraced trade and investment as a means to boost economic development and help alleviate poverty. As a result, the Rwandan economy has grown by over 9 percent per year since 1995.
- The United States-Rwanda BIT will reinforce these efforts and promote new foreign investment that will help Rwanda prosper.
Our bilateral economic relationship with Rwanda is strong and growing. While the current level of U.S. investment in Rwanda is modest, several large U.S. companies conduct business with Rwandan firms and are exploring trade-related initiatives with the Rwandan Government.
- Bilateral trade flows increased by 40 percent in 2007, totaling nearly $29 million. U.S. imports from Rwanda were valued at $13 million during this period, up 43 percent from 2006. U.S. exports to Rwanda totaled $16 million in 2007, up 37 percent over 2006.
- Products from Rwanda are eligible for duty-free access to the United States under the African Growth and Opportunity Act and the Generalized System of Preferences.
* The United States currently has five BITs in force with Sub-Saharan African countries: Cameroon, the Democratic Republic of Congo, Mozambique, the Republic of Congo, and Senegal.
WEBLOGS
Venezuela: the spectre of Big Oil
http://www.poleconanalysis.org/2008/02/venezuela-spectre-of-big-oil.html
PolEconAnalysis.org's Paul Kellog argues that ExxonMobil isn't suing PDVSA because it needs the money. The world's largest publicly traded corporation recorded profits of $40.6-billion (U.S.) in 2007, up three per cent from 2006's record of $39.6-billion. The truth is, ExxonMobil's ultimatum has more to do with politics than economics.
PODCASTS
New episode IDN podcast: How to Borrow a Mediator's Powers
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.
Mike talks with Prof. Dwight Golann, of Boston's Suffolk University Law School, on how mediation attorney-advocates and parties can "borrow" from the mediator to serve their case better.
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
ICDR Young & International to Hold Anniversary Program - 15 March
http://www.adr.org/sp.asp?id=34150
The International Centre for Dispute Resolution Young & International (ICDR Y&I) will be holding an anniversary program in conjunction with this year's Willem C. Vis International Commercial Arbitration Moot in Vienna.
The ICDR Y&I Anniversary Program, scheduled for March 15 at the Vienna Economic Chamber, will focus on the subject of "The Award of Costs and Interest in International Arbitration." It will feature a keynote speech by Dr. Siegfried H. Elsing of Holters & Elsing, Dusseldorf, followed by panel discussions with leading international arbitrators and legal practitioners examining the issue of costs from the perspective of counsel and arbitrator. After the program, attendees will be invited to attend a traditional Viennese dinner reception known as Heurigen.
...
AmCham Vietnam Lunch: Forum on International Arbitration
http://www.amchamvietnam.com/event/936/detail
When: Mon, Mar 31st 11:30 am to 2:45 pm
Where: New World Hotel Saigon, Ho Chi Minh City
Event Background: Join other AmCham members and guests at this lunch on international arbitration with Jason Fry, Secretary General of the ICC International Court of Arbitration.
Arbitration under the rules of the ICC International Court of Arbitration is on the increase. Since 1999, the Court has received new cases at a rate of more than 500 a year. In 2007, the number of new cases filed with the ICC Court in 2007 totalled 599, a figure unprecedented in the Court's 85-year history.
Who should attend?
- Business people involved in international trade and dispute resolution.
- Legal directors and corporate counsel from companies involved in international trade;
- Practising lawyers;
- Legal practitioners advising international trading companies;
FIAA International Arbitration Advocacy Workshop: Questioning of Fact Witnesses in International Arbitration 3 April 2008 - 5 April 2008
http://www.fiaa.com/programs.html
The Foundation for International Arbitration Advocacy ("FIAA") was launched in October 2007 by leading international arbitration practitioners and advocacy instructors. FIAA is the first organization dedicated to providing lawyers with learning-by-doing advocacy training specifically designed for international arbitration. Recognizing the importance of this initiative, a prestigious group of international arbitration practitioners from around the world have enthusiastically committed their support. The Founders of FIAA are Sheila Block (Torys LLP, Toronto, Canada), Gabrielle Kaufmann-Kohler (University of Geneva Faculty of Law, Geneva, Switzerland), David Roney (Schellenberg Wittmer, Geneva, Switzerland) and James Seckinger (University of Notre Dame Law School, Indiana, U.S.A.).
Location: Lausanne, Switzerland
Focus: This learning-by-doing workshop is designed to provide novice international arbitration practitioners with the fundamentals of examining and cross-examining fact witnesses based on a mock arbitration case.
ICC launches 'Arbitration Day' - 8 april
http://www.iccwbo.org/iccbjedg/index.html
As arbitration is fast becoming the preferred way to resolve cross-border business disputes, the ICC Institute of World Business Law is launching a series of 'Arbitration Day' training sessions starting next month. The first session, entitled "Hearing and Deliberation," takes place 8 April at ICC headquarters in Paris. Participants will be involved in a "real" mock arbitral hearing and "real" deliberation.
With a tribunal and an audience to enhance the realism of a session, Arbitration Day will show how an arbitral tribunal deliberates on procedural and substantive issues. Two hearings will be held, the first on provisional measures and the second on the merits of a case.
...
International Entry Course Leading to the Associate Membership of the Chartered Institute of Arbitrators (CIArb) 13 - 15 April
www.arbitrators.org
The Cairo Regional Centre for International Commercial Arbitration and the Cairo Branch of the Chartered Institute of Arbitrators are organizing: "The International Entry Course Leading to the Associate Membership of the Chartered Institute of Arbitrators (CIArb)" during 13-15 April 2008 at the Conference Hall of the Cairo Centre, Cairo, Egypt.
FIAA International Arbitration Advocacy Workshop: Questioning of Expert Witnesses in International Arbitration 6 November 2008 - 8 November 2008
http://www.fiaa.com/programs.html
Location: Lausanne, Switzerland
Focus: This learning-by-doing workshop is designed to provide more experienced international arbitration practitioners with advanced skills and techniques for examining and cross-examining expert witnesses based on a mock arbitration case.
Short overview of upcoming events
- 08 Mar 2008
13th Symposium of the Australasian Forum for International Arbitration (AFIA)
AFIA
Hong Kong - 13 Mar 2008
International Commercial Arbitration
PLI
United States of America - 13 - 14 Mar 2008
Annual Spring Conference
UNCITRAL , VIAC
Austria - 13 - 14 Mar 2008
VIAC - UNCITRAL - 2008 Conference
UNCITRAL , VIAC
Austria - 14 - 20 Mar 2008
Fifteenth Annual Willem C. Vis International Commercial Arbitration Moot
Pace Law School - Institute of International Commercial Law
Austria - 17 Mar 2008
Fourth Annual Leading Arbitrators' Symposium on the Conduct of International Arbitration
Juris Conferences LLC
Austria - 19 Mar 2008
LMAA ANNUAL DINNER
LMAA
United Kingdom - 27 Mar 2008
Most Favoured Nation: Has Practice Really Followed Theory
Columbia Program on International Investment
United States of America - 28 Mar 2008
10th Anniversary of the ICC Arbitration Rules
ICC
France - 30 Mar - 01 Apr 2008
The Three Pillars of Strength: Practice, Procedure & Law
AAA , ICDR
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
Ana Palacio resigns as World Bank General Counsel & Secretary General of ICSID
In agreement with the President Ana Palacio will be leaving the World Bank Group shortly.
Prof. Munir Maniruzzaman elected Council Member
http://www.iccwbo.org/id2728/index.html
Prof. Munir Maniruzzaman, a frequent contributor to TDM / OGEL was recently elected as a Council Member to the Council of the ICC Institute of World Business Law in their recent Annual Meeting: (http://www.iccwbo.org/id2728/index.html)
Fulbright & Jaworski L.L.P. Announces 11 New Partners
http://www.pr-inside.com/fulbright-amp-jaworski-l-l-p-announces-r470784.htm
Fulbright & Jaworski L.L.P. has selected 11 lawyers from within the international firm to join Fulbright's global partnership. Fulbright's new partners include: Michael Thomas Clark, Antony James Corsi, Denise Webb Glass, Richard D. Hill, Matthew H. Kirtland, Christopher J. Lallo, Michael S. McCoy, Oscar Rey Rodriguez, David A. Rosenzweig, Bryn Alan Sappington and Paul Trahan.
Antony James Corsi is a new partner in Fulbright's London office, where he has been a senior associate since 2006. Corsi handles dispute resolution - primarily complex commercial litigation, alternative dispute resolution, risk assessment and internal and regulatory investigations. Richard Hill joins the partnership in Fulbright's London office, where he had been a senior associate since 2005. He practices in Fulbright's international arbitration group, and handles commercial litigation and alternative dispute resolution. Matthew H. Kirtland is the firm's newest partner in the Washington, D.C. office, where he had been a senior associate. Kirtland focuses on international and domestic arbitration, white collar civil and criminal defense, and complex civil litigation.