issue #10, week 13. 25 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.

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Recent issues:

NEWS

Russia passes foreign investor law on 2nd reading

March 21, http://www.guardian.co.uk/feedarticle?id=7402505

Russia's State Duma on Friday approved the key second reading of a long-awaited law on foreign investments in strategic industries, designed to clarify which assets will be off-limits to foreigners.

The vote took place against the background of a raid by Russia's Federal Security Service (FSB) this week on the offices of BP's Russian venture TNK-BP, sparking concerns about a new Kremlin asset-grab campaign.

The FSB was heavily involved in drafting the law, seeking the right to block investment deals and wanting the law to apply to existing exploration licenses -- proposals not included in the draft approved by the Duma.

The draft says firms like TNK-BP -- half-owned by a foreign investor and possessing licences for deposits that would have qualified as strategic according to the new law -- need not seek permission for deals already concluded.

...

Pdvsa refinanced USD 1.41 billion debt of former Sincor

March 21, http://english.eluniversal.com/2008/03/21/en_eco_art_pdvsa-refinanced-usd_21A1449325.shtml

Venezuelan state oil holding Pdvsa Thursday announced it refinanced USD 1.41 billion in debt for heavy-crude oil project Petrocedeño in the Orinoco oil belt -a joint venture where French Total and Norway Statoil own a minority stake.

The negotiation came as part of Venezuelan President Hugo Chávez government's nationalization drive launched in 2007. Under the process, Pdvsa now holds at least a 60 percent stake in all of the oil joint ventures with foreign corporations.

...

UK: External Funding Booms as Litigators Plot Upturn

March 20, http://www.law.com/jsp/article.jsp?id=1206009902544

Eight out of 10 of London's top law firms are already using or assessing external funding for litigation and arbitration cases, it has emerged, marking a dramatic move of third-party funding into mainstream practice.

... See also http://blogs.wsj.com/law/2008/03/20/third-party-litigation-funding-stepping-up-in-uk/

Update on Eureko dispute with the Polish government

http://www.eureko.net/press/eureko/2007-03-18.pdf

From "Eureko Announces 2007 Annual Results - 18 March 2008":

...

Eureko's long-running dispute with the Polish government over the agreement to acquire further shares in state-owned insurer PZU has continued beyond the first phase of the international arbitration. We were very successful in the arbitrage so far and amongst others won two appeals from the Polish Government. In February 2008 a 'negotiation memorandum' was concluded by the Polish government and Eureko to conduct negotiations and to work out the settlement.

...

Turkmenistan approves new law encouraging foreign investment

March 19, http://www.kyivpost.com/bn/28618/

A new Turkmen law aimed at encouraging foreign investment took effect Tuesday, moving the energy-rich Central Asian country further away from the isolation imposed by its previous ruler.

The law, published in the official government newspaper Neutral Turkmenistan, envisages quick issuing of multi-entry visas to foreign investors. It also waves a number of taxes and other fees for foreign investment projects.

"This law has been drafted as part of the policy of deep reforms of our economy and is aimed at attracting foreign investment," Turkmen President Gurbanguli Berdymukhamedov said in televised comments.

...

New binding Judgment of Cologne Court of Appeals - Sedelmayer vs. Russian Federation - Public Auction and Sequestration of Russian State owned Real Estate is Legal

March 18

In a final judgment the tribunal found that Sedelmayer is entitled to proceed with the forced execution of real estate assets owned by the Russian Federation and administered by the Kremlin Administration (Upravlenie delami Prezidenta Rossiskoje Federacii).

The judgment is only the latest in a string of decisions rendered against the Russian Federation since autumn 2007, in well over a dozen cases, and thus concludes the legal possi bilities of the Russian State to avoid the forced liquidation of her assets in Germany in order to satisfy the creditor Sedelmayer.

The case dealt with the illegal transfer of Russian State property to one of the Russian Federation's wholly owned "unitary state enterprises", with a view to avoid paying debts through forced execution all together. The German court found that transfers under Russian law are not valid under German law when the real estate assets are located within Germany.

The judgment text is not yet available. The German language press statement of the Cologne Court of Appeals issued on March 18, 2008 can be found here: http://www.olg-koeln.nrw.de/home/presse/archiv/2008/russfoederation.pdf

Venezuela wants to return to arbitration with ExxonMobil

March 19, http://www.forbes.com/afxnewslimited/feeds/afx/2008/03/19/afx4791396.html

Venezuela has said it would take its nationalization dispute with ExxonMobil Corp back to international arbitration, after a London judge lifted a freeze on 12 bln usd in global assets of Venezuela's state-run oil company PDVSA.

'We're going back to arbitration in New York to seek fair compensation for the companies whose interests have been affected (by Venezuela's 2006 decision),' said Energy Minister Rafael Ramirez.

...

Venezuela wins asset freeze case against Exxon

March 18, http://www.reuters.com/article/businessNews/idUSL188568920080318

A $12 billion freeze on Venezuelan assets awarded to U.S. oil major Exxon Mobil should be lifted, a UK court ruled on Tuesday. [See TDM website for copy of the Ruling]

Exxon convinced a court in January to freeze the assets of Venezuela's state oil company so cash would be available if it won arbitration over an oil field which was lost in President Hugo Chavez's nationalization drive.

But after hearing Petroleos de Venezuela's arguments, the judge ruled against Exxon.

"The injunction granted against the defendant, Petroleos de Venezuela, should be discharged," Justice Paul Walker told the court.

...

See also

VENEZUELA: Gov't Celebrates British Ruling Against Exxon
http://www.ipsnews.net/news.asp?idnews=41644

London Court Rules in Favor of Venezuela in Dispute with Exxon
http://www.venezuelanalysis.com/news/3283

... Meanwhile, PDVSA will regain full control over its assets in the U.K., but the asset freezes Exxon obtained in the Dutch Antilles, Holland, and New York will remain for now. ...

Exxon's $12 Billion Venezuela Asset Freeze Overturned
http://www.bloomberg.com/apps/news?pid=20601086&sid=ahEO3V_lPHKQ&refer=news

Tatneft hires international legal firm Cleary Gottlieb for Ukraine arbitration

http://today.reuters.com/news/articlenews.aspx?type=correctionsNews&
storyID=2008-03-18T182327Z_01_L1829573_RTRIDST_0_TATNEFT-UKRAINE-CORRECTED-REPEAT.XML

Russian oil firm Tatneft has hired international legal firm Cleary Gottlieb to handle international arbitration over ownership rights to a Ukrainian refinery, Tatneft and Cleary Gottlieb said on Monday.

Tatneft claims it lost some 600,000 tonnes of crude, worth around $480 million at current prices, that it delivered to the disputed Kremenchug plant.

...

See also http://www.cgsh.com/cleary_gottlieb_retained_by_tatneft_to_file_arbitration_against_ukraine/

Tanzania: Dar in Yet Another Crisis Over Water Contract Turned Sour

March 17, http://allafrica.com/stories/200803171229.html

Tanzania has to attend yet another arbitration in which government is alleged to have mishandled a contract given to City Water, a Tanzanian registered firm but with British/German roots recently.

City Water alleges that it encountered a loss of US$20-25million when the government decided to terminate its contract and expel its executives in 2005.

On its part, the government accuses the firm for its inability to meet the set performance targets.

In an arbitration filed at the International Centre for Settlement of Investment Disputes (ICSID) in August 2005 City Water alleges: "Breaches by the United Republic of Tanzania of its obligations under both international and domestic law concerning foreign investment which have caused loss in the region of US$ 20 to 25 million."

...

Canada Passes Legislation to Implement the International Convention on Investment Dispute Resolution

March 14, http://news.gc.ca/web/view/en/index.jsp?articleid=385449&categoryid=1&category=News+Releases

The Honourable Maxime Bernier, Minister of Foreign Affairs, announced today that Canada has completed the enactment of Bill C-9, An Act to Implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). The bill has been passed by both the House and the Senate and has received Royal Assent.

"This Act enables Canada to ratify a convention that has already been ratified by 143 countries, and that will provide Canadian investors with another internationally recognized instrument for protecting their assets abroad," said Minister Bernier.

"This is welcome news for Canadian business," said the Honourable David Emerson, Minister of International Trade. "Entrenching international standards will both promote and protect two-way investment between Canada and its trading partners around the world. These are key objectives of the Global Commerce Strategy."

The ICSID Convention is a World Bank-sponsored instrument aimed at facilitating the free flow of international investment. It does this by providing foreign investors and host states with tools that enable dispute resolution through conciliation and arbitration, and it has become an internationally recognized, efficient and reliable mechanism for settling investment disputes. The ICSID arbitration rules were modified in 2006 to facilitate open hearings and the filing of amicus briefs. Canada's ratification of the Convention not only provides additional protection to Canadian investors but also reinforces Canada's investment-friendly image among foreign states.

The Convention can also be used by provinces and territories that pass implementing legislation. In recent years, four provinces—British Columbia, Newfoundland and Labrador, Ontario and Saskatchewan—have adopted legislation implementing the Convention in their jurisdictions. Nunavut has also legislated to that effect. The Government of Canada welcomes provincial and territorial support for the Convention and invites all provinces and territories that wish to use ICSID arbitration to pass implementing legislation.

Bulgaria denies reports that controversial businessman has distraint order on embassy in Israel

March 16, http://www.sofiaecho.com/article/
bulgaria-denies-reports-that-controversial-businessman-has-distraint-order-on-embassy-in-israel/id_28168/catid_66

Reports in Russian and Israeli media that controversial Israeli businessman Gad Zeevi had secured a distraint order against Bulgaria's embassy in Tel Aviv over money owed to him from the Balkan Airlines bankruptcy were not true, Bulgaria's Foreign Ministry told The Sofia Echo on March 16.

Website news.ru reported on March 14 that Zeevi had won an order in an Israeli court against the Bulgarian embassy imposing distraint on the building, embassy vehicles and bank accounts.

Zeevi sought the order as a sequel to a ruling against Bulgaria by the international Court of Arbitration in Paris in November 2006 ordering Bulgaria to pay $10 million (6.42 million euro) in compensation for non-fulfilment of contract conditions after a consortium headed by Zeevi acquired 75 per cent of the now-defunct Balkan Airlines in July 1999. In February 2000, Balkan went out of service when its debts massively outweighed its assets. Liquidation proceedings began after Bulgarian insurer Bulstrad sued Balkan Airlines for $5.5 million (3.53 million euro) arrear debts.

...

India: Supreme Court - Arbitration agreements must be adhered to by the parties

March 17, http://www.business-standard.com/common/news_article.php?leftnm=3&subLeft=3&chklogin=N&autono=317044&tab=r

The Supreme Court ruled last week that if the parties to a contract agree on the arbitrator, the place of arbitration and the court for deciding disputed questions, these should be adhered to.

Dismissing the arbitration petition of Shivnath Rai Harnarain (India) Ltd for appointment of a mediator in terms of Section 11(6) of the Arbitration and Conciliation Act, the arbitration judge noted that the parties chose Samuel Marshal as the arbitrator and the venue as Singapore. His award in favour of the firm was set aside by a Singapore court.

The firm then moved the Supreme Court for appointment of an arbitrator. The court rejected this as the arbitration on agreed terms was held in Singapore and the court there passed the order. Therefore, it cannot turn around now and ask the Indian court to appoint an arbitrator.

...

Vodafone to meet Polish Minister to discuss Polkomtel

March 12, http://www.telegeography.com/cu/article.php?article_id=22146&email=html

Bloomberg reports that representatives for the Vodafone Group, which owns 19.6% of Polish cellco Polkomtel, will meet with Treasury Minister Aleksander Grad tomorrow to discuss its investment. Citing business daily newspaper Puls Biznesu, the report goes on to say that fellow Polkomtel shareholder KGHM Polska Miedz, is looking for the government to help solve a conflict between shareholders over the sale of TDC of Denmark's 19.61% stake.

...

Turkish court restricts property sales to foreign firms

March 12, http://www.guardian.co.uk/feedarticle?id=7378993

Turkey's Constitutional Court on Wednesday cancelled a law allowing sales of real estate to foreign companies, a potential setback in the government's efforts to open up the $620 billion economy.

Turkey's centre-right government had previously approved a law allowing property sales to foreigners as part of a drive to boost economic growth and meet legal standards of the European Union which Turkey hopes to join.

The ruling of the court, made after an appeal by the nationalist-minded opposition Republican People's Party, affects a part of a foreign direct investment law which allows companies established by foreign investors or joint ventures involving foreign firms to acquire property in Turkey.

"Foreigners should not be hurt by the decision because the Constitutional Court allows six months for the law to take affect and the government can at this time make new changes in the title-deed law," said an Ankara-based economic official, who declined to be named.

...

ICC International Court of Arbitration to open offices in Asia

March 12, http://www.iccwbo.org/court/arbitration/id19558/index.html

The International Court of Arbitration of the International Chamber of Commerce and the Secretariat of the ICC Court have decided to locate their new offices in Hong Kong and Singapore.

In recognition of the growing importance of the Asia Pacific region to ICC Dispute Resolution Services and the ICC International Court of Arbitration, ICC announced in September 2007 its intention to establish a branch of the Court's Secretariat in Asia to administer ICC cases in the region.

ICC has now decided on two important initiatives:

Both initiatives will be implemented in the last quarter of 2008 and should be fully operational by the end of the year.

The Secretary General of the ICC Court, Jason Fry, commented: "We are very excited by these two steps which reflect our conviction that the Asia Pacific region is of significant importance to the future of ICC Dispute Resolution Services. Our desire was to respond to an increasing demand for the provision of high quality services locally. ICC is a truly international organization and as such wishes to ensure its global reach to the international business community."

He added: "We are grateful for the encouragement we have received from the governments of Singapore and Hong Kong to come to the region. Both Singapore and Hong Kong are recognized hubs for international dispute resolution. That fact is reflected in this two pronged approach to the region."

The Chairman of the ICC Court, Pierre Tercier, said: "This important step will be a milestone in the development of ICC Dispute Resolution Services. It will increase our presence in Asia and demonstrate once more the international character of the institution."

ICC Secretary General Guy Sebban said: "We are very pleased to announce this key decision that reflects one of the main conclusions of a strategic survey conducted by ICC in 2007, namely to recognize the growing importance of Asia as one part of the world where ICC should have a greater presence and increased visibility."

Concern grows over global trade regulation

Alan Beattie, March 12, http://www.ft.com/cms/s/0/
58699264-ef9c-11dc-8a17-0000779fd2ac.html?nclick_check=1

Amid the noisy battering the North American Free Trade Agreement is taking from both Democratic presidential hopefuls, one recent statement from Hillary Clinton was particularly resonant. "We will have a very clear view of how we're going to review Nafta," the New York senator said. "We're going to take out the ability of foreign companies to sue us because of what we do to protect our workers."

...

Brussels seeks greater power in foreign deals

Alan Beattie, March 12, http://www.ft.com/cms/s/0/
0fcdeb3a-efc0-11dc-8a17-0000779fd2ac,dwp_uuid=70662e7c-3027-11da-ba9f-00000e2511c8.html?nclick_check=1

The European Commission is seeking to take more power into its hands to strike deals to protect European companies investing abroad, a role traditionally undertaken by the European Union's member states.

Brussels has long had the power to set laws governing external trade tariffs but rules giving European companies rights against the foreign governments in whose countries they have invested have, until now, been agreed by the member states in bilateral investment treaties (BITs). Such treaties often contain "investor-state provisions" allowing companies to sue governments directly.

...

Yemen, South Africa sign investment memos

March 11, http://www.sabanews.net/en/news149064.htm

The Joint South African-Yemeni Trade and Investment committee singed on Tuesday two understanding memos in field of investment and encouraging the exportations development in both countries.

In its 2nd meeting co-chaired by assistant undersecretary of Industry and Trade Ministry Salem Salman and the general director of Foreign Trade and Economic Relations in S. African Industry Ministry Victor Masha, the committee reviewed the cooperation fields between the two countries in fields of trade and investment.

The meeting dealt with the investment opportunities available in Yemen and the facilities of the Yemeni investment law given for investors and means to encourage businessmen in both countries for setting up an joint investment companies.

...

India: Another setback for arbitration (and investors)

March 13, http://www.business-standard.com/common/news_article.php?leftnm=10&bKeyFlag=BO&autono=316 605

Parties can now challenge "foreign awards" before Indian courts on the ground that they violate Indian statutory provisions.

The recent decision of the Supreme Court in Venture Global Engineering vs Satyam Computer Services Ltd ("Venture Global") has served another blow to the fledgling Indian arbitration regime and, in the process, sounded warning bells for those doing business in India.

Four years ago, the Supreme Court ruled that any domestic arbitral award found to contravene Indian statutory provisions could be set aside by Indian courts for violating "public policy" (ONGC vs SAW Pipes). This sweeping interpretation of "public policy" introduced potentially limitless judicial review of Indian arbitral awards — something that the Indian Arbitration Act 1996 was intended to eliminate. The SAW Pipes decision was roundly criticised — both within and outside India — with practitioners expressing the hope that the Supreme Court would reconsider its approach.

Unfortunately, these hopes have been dampened following the decision in Venture Global, which extends to the international arena the broad powers to set aside awards which previously were limited to domestic arbitrations. Parties now can challenge "foreign awards" (that is, awards in arbitrations outside India) before Indian courts on the ground that they violate Indian statutory provisions and are contrary to Indian public policy. As a result, even if transactions are structured to ensure that disputes are arbitrated outside India, the post-Venture Global risk is that parties will find spurious grounds to unwind arbitral awards in Indian courts, thereby undermining the parties' original bargain. The only saving grace is that the Supreme Court acknowledged that parties can draft suitable language in their contracts to eliminate such judicial review.

...

See also the recently published "The Indian Supreme Court Totally Abolishes the Statutory Distinction Between Domestic and Foreign Awards"

Mining companies brave Zimbabwe nationalisation

March 11, http://africa.reuters.com/business/news/usnBAN123275.html

Two heavyweight foreign mining companies said on Monday they would press ahead with operations in Zimbabwe despite a nationalisation law that analysts warned could deepen an economic crisis ravaging the country.

The world's largest platinum miner, Anglo Platinum and Rio Tinto have said they will continue mining after President Robert Mugabe signed into law on Sunday a bill giving locals the right to take majority control of foreign companies, including mines and banks.

...

PODCASTS

New episode IDN podcast: Expertise Proceedings in France & Italy: Same but Completely Different

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 attorneys from France and Italy in a discussion on using litigation expert witnesses. This podcast addresses expertise proceedings and 'technical consultings' in the respective countries, and how these practices affect litigation and settlement.

Download here http://www.cpradr.org/TrainingEvents/Podcasts/tabid/261/Default.aspx

New episode IDN podcast: The Arbitration Tribunal of Barcelona

This week, Mike examines the Arbitration Tribunal of Barcelona, an example of a smaller regional ADR provider that is carving out its own provider niche in a business long dominated by a few big players.

Download here http://www.cpradr.org/TrainingEvents/Podcasts/tabid/261/Default.aspx

EVENTS

ICC launches dispute resolution course in Singapore, April 2 -4

March 19, http://www.iccwbo.org/iccbjgca/index.html

ICC will hold its first course in Singapore on amicable dispute resolution (ADR) from 2 to 4 April, in the presence of Jason Fry, Secretary General of the ICC International Court of Arbitration.

The interactive training session will take participants through the different stages of any amicable dispute resolution procedure, such as mediation. After defining the roles of the mediator, parties, and lawyers, participants will work in small groups on a mock case. Each group will be led by a renowned dispute resolution practitioner. A real case study will be used to illustrate the roles of the parties.

...

DIAC to organize roundtable discussion on Commercial Arbitration in the UAE on April 16

March 12, http://www.ameinfo.com/149719.html

Registration form: http://www.diac.ae/idias/events/events%202008/Seminar/registration/

Dubai International Arbitration Centre (DIAC) will host a roundtable discussion on the Development and Implementation of Commercial Arbitration in the UAE on April 16, 2008 at the Dubai Chamber of Commerce & Industry (DCCI) premises.

...

Remedies in Commercial, Investment, and Energy Arbitrations - April 17 - 18

Houston, April 17 - 18, 2008 - St. Regis Hotel
http://www.utcle.org/conference_overview.php?conferenceid=796

What can the arbitrator do in fashioning remedies in commercial, investment and energy arbitrations? This program - jointly sponsored by the Permanent Court of Arbitration (PCA), the Houston International Arbitration Club (HIAC), and The University of Texas School of Law - brings together an internationally- renowned faculty from Europe, Latin America, Canada and the U.S., in a special conference focused on the law, economics, advocacy and enforcement of remedies in commercial and investment cases.

The conference blends analysis with practical application of economic and legal principles to solve real problems facing the international energy and construction sectors. Keynote speaker V. V. "Johnny" Veeder leads a distinguished opening panel that examines these issues, and also delivers the keynote luncheon address on Thursday. The conference ends with a distinguished General Counsel's panel, including counsel from ExxonMobil, ConocoPhillips, Baker Hughes, and Grupo ICA. Don't miss this unique and valuable program!

Last day for early registration: April 9, 2008—5 p.m. CST more information at the conference website http://www.utcle.org/conference_overview.php?conferenceid=796

The Function of Law in the International Community 11th & 12th July 2008

Lauterpacht Centre for International Law, University of Cambridge

The provisional programme of events can be found in FTD 9. The From the Director (FTD) containing news on Centre developments and activities is available for download here http://www.lcil.cam.ac.uk/Media/from_the_director/pdf/FTD9.pdf

One session will be dealing with Investment Arbitration: A Wilderness of Single Instances?

Foreign Direct Investment International Moot Competition - Investor-State Arbitration: Perspectives on Legitimacy and Practice

Foreign Direct Investment International Moot Competition - Investor-State Arbitration: Perspectives on Legitimacy and Practice
The FDI Moot promotes an understanding of international investment laws and of arbitration as an effective mechanism for the adjudicating international investment disputes. The event attracts not only the student participants but also lawyers from the around the world, who act as judges as part of a program that allows them also to discuss in a collegial environment developments affecting the field. The FDI Moot involves a hypothetical case in connection with an investment by a private foreign investor. Each year’s hypothetical is prepared by the competition’s Advisory Board, composed of distinguished academics and practitioners in the fields of international arbitration, investor-State arbitration and international investment regulation.
October 31 - November 2. Boston, Massachusetts.
More information is available at www.fdimoot.org.

MOVES / JOBS

Phillip Capper joins White & Case

March 20, http://www.whitecase.com/News/Detail.aspx?news=2037

White & Case LLP is strengthening its existing London and global international arbitration and construction capabilities with the arrival of partner Phillip Capper. Phillip currently heads the worldwide international arbitration practice at Lovells. He specializes in international arbitration, with a particular focus on engineering, construction and infrastructure.

Phillip brings with him considerable experience in complex cross-border disputes in multiple jurisdictions, including Switzerland, India, Kuwait, Egypt, France, Jamaica and England. This experience, spanning the roles of adviser, advocate, mediator, legal assessor and arbitrator, relates to complex engineering, technology, electrical and mechanical procurement issues and infrastructure projects. He also has substantial experience in construction contract drafting, particularly in the building, civil engineering and rail sectors.

...

ICC Court of Arbitration President Pierre Tercier resigned his mandate

The much respected Prof Tercier has resigned his mandate as we hear unexpectedly due to tensions over the autonomy of the court. (More details below) This follows earlier relocation of the equally respected ICC Court Secretary General Anne Marie Whitesell.*

* See

DEMISSION DE LA PRESIDENCE DE LA CCI
Fribourg, le 19 mars 2008

Mesdames,
Messieurs,
Chers Collègues,
Chers Amis,

C'est connu, l'arbitrage international réserve toujours des surprises; en voici une de taille, un peu particulière et un peu regrettable tout de même.

Mon mandat de Président de la Cour internationale d'arbitrage de la CCI devait prendre fin au 31 décembre 2008. Il m'avait été fixé un délai au 29 février pour faire connaître ma position en vue d'un second mandat. Or, le 20 février, j'ai été informé que la Présidence de la CCI avait d'ores et déjà décidé de ne pas proposer aux organes directeurs le renouvellement de mon mandat. Selon ce qui m'a été déclaré, cette décision était motivée non par mon activité professionnelle en qualité de Président de la Cour, mais par la conception que j'aurais eue du rôle et de la place de la Cour dans la CCI, en particulier par les vœux que j'aurais émis en faveur d'une plus large autonomie de la Cour. En réponse à une question que j'ai posée, il m'a été confirmé que cette décision était définitive et qu'il était en conséquence inutile que je communique ma position.

Vous vous en doutez, cette décision m'a totalement surpris, profondément choqué et sérieusement perturbé : elle m'a été communiquée brièvement, sans aucun contact direct avec l'un des membres de la Présidence ; elle a été prise sans le moindre préavis et sans que m'ait été donnée la moindre occasion de m'expliquer ; elle repose, pour autant que j'en puisse juger, sur une interprétation déformée de mes appels insistants en faveur d'un plus large soutien et d'un plus grand respect du Secrétariat et des activités de la Cour. Par-dessus tout, elle a pour effet de me priver d'ores et déjà et jusqu'à la fin ordinaire de mon mandat de l'autorité dont doit jouir le Président de la Cour, non seulement dans ses fonctions propres, mais aussi dans ses relations avec la CCI.

J'ai jugé cette décision inacceptable, en la forme et au fond, pour la fonction que je représente et les intérêts dont j'ai la charge. Dans ces conditions, après réflexion, j'ai considéré que je n'avais pas d'autre choix que de démissionner, ce que j'ai fait par une lettre du 27 février avec effet au 30 juin 2008. Cette démission a aussitôt été acceptée par la Présidence.

Inutile de vous décrire mes sentiments : je me sens frustré de ne pouvoir continuer mon activité, maintenant que j'ai acquis quelque expérience ; je suis déçu de ne pas pouvoir poursuivre ce que j'avais entrepris jusqu'ici avec passion et, me semble-t-il, un certain succès ; je suis privé du plaisir que j'avais à collaborer avec la Cour et les membres du Secrétariat. La décision a été prise, je ne peux que m'incliner.

La situation n'a finalement rien de dramatique : L'arbitrage CCI se poursuit, puisqu'il repose largement sur les épaules de la Cour et du Secrétariat ; celui-ci fournit, dans des conditions souvent difficiles, un travail d'une qualité et d'une intensité exceptionnelles. La décision de principe ayant été prise par la Présidence, ma démission n'a fait qu'en anticiper les effets. L'essentiel est maintenant que puisse être rapidement trouvé mon successeur, afin de réduire cette nouvelle période de transition, et de donner à la Cour un Président qui puisse reprendre le flambeau et participer activement aux discussions qu'il a été décidé d'ouvrir sur les relations entre la Cour et la CCI. Si besoin en était, cet incident en établit l'urgence.

Je regrette profondément cette situation, mais il va de soi que je poursuivrai mon activité jusqu'au 30 juin comme je l'ai fait jusqu'ici.

Je reste et resterai un fervent partisan de l'arbitrage CCI et des hautes missions de la CCI.

J'aurai sans doute à l'avenir d'autres occasions de vous remercier de la collaboration que j'ai pu avoir avec vous dans ce cadre.

Recevez, Mesdames, Messieurs, Chers Collègues, Chers Amis, l'assurance de ma considération distinguée.

Pierre Tercier

BOOKS

A Practical Guide to International Arbitration in London

Practical Guides series (published March 2008)
Author: Hilary Heilbron Q.C
ISBN : 978 1 84311 729 2

"With the development of international arbitration, the market for knowledge of the subject has grown globally beyond those lawyers with expertise in the subject. A Practical Guide to International Arbitration in London takes a pragmatic look at how to run an international arbitration where the seat of the arbitration is London.

It explores on a stage-by-stage basis the tactical, practical and legal issues that need considering in an international arbitration in London from the perspective of the arbitral process, including its relationship with the court support given by the English courts. The book also examines the role of the English courts in assisting foreign arbitrations.

This book is an easy to understand one stop practical guide with many useful suggestions and tips in relation to a process which is different from litigation, from someone experienced in international arbitration and the English process. It also deals briefly with investment treaty arbitration. In addition, it provides references to key legal authorities and the English Arbitration Act 1996. It includes a comprehensive set of appendices including a comparison of the ICC, LCIA, ICDR and UNCITRAL Rules.

A Practical Guide to International Arbitration in London is directed principally at lawyers not familiar with London arbitration, including foreign as well as English dispute resolution and transactional lawyers and corporate counsel, and will enable them to advise their clients when faced with a London arbitration or considering including one in a contract. It will also act as a short and concise reference book for those experienced in international arbitration."

Contents: Chapter 1 - Some relevant aspects of the English legal system and practice; Chapter 2 - Overview of the advantages and disadvantages of International Arbitration compared with other forms of dispute resolution Chapter 3 - Understanding arbitration clauses; Chapter 4 - The scope of the arbitration clause; Chapter 5 -Choosing the tribunal and the legal team Chapter 6 - Activity and considerations prior to commencing an arbitration; Chapter 7 - First steps in the process; Chapter 8 -Activity and considerations following formation of the tribunal; Chapter 9 - Jurisdiction; Chapter 10 - Directions and timetable; Chapter 11 - Applications to the Court prior to the hearing; Chapter 12 - Ongoing issues and preparing for the hearing; Chapter 13 - Hearings; Chapter 14 - Awards; Chapter 15 - Challenges to the award and appeals generally; Chapter 16 - Enforcement of an English and foreign award; Chapter 17 - Investment Treaty Arbitration.

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Kate Marshall, Informa Law,
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London W1W 7RE
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ONLINE: www.informalaw.com/internationalarbitration
FAX: +44 (0) 20 7017 5274
EMAIL: kate.marshall@informa.com
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