issue #15, week 21. 23 May 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

Pakistan: Termination of M-1 contract Turkish firm takes Communications Ministry, NHA to ICSID

http://thepost.com.pk/IsbNewsT.aspx?dtlid=162805&catid=17

The Ministry of Communications and National Highway Authority is likely to appear before International Centre for Settlement of Investment Disputes on the issue of termination of M-1 Motorway contract to Turkish construction company M/S Bayinder Insaat Turizm Ticaret Ve Sanayi A.S, The Post has learnt reliably.

A source within the Communications Ministry, requesting anonymity, told The Post Thursday that Federal Communication Secretary Sajid Hussain Chattha and NHA Acting Chairman Abdul Waheed Khan will visit France on May 26, 2008, to represent the ministry in the case.

...

Indias' Supreme Court: No foreign arbitration for Indian cos in dispute

20 May 2008, http://timesofindia.indiatimes.com/Business/India_Business/No_foreign_arbitration_for_Indian_cos_in_dispute_SC/articleshow/3054666.cms

The Supreme Court has ruled that two Indian companies locked in a dispute cannot seek international commercial arbitration, as it tantamounts to condoning the home country's law.

While dismissing a plea by TDM Infrastructure Pvt Ltd for International Commercial Arbitration (ICA), a bench headed by Justice S B Sinha said, "A company incorporated in India can only have Indian nationality. Hence, where both parties have Indian nationalities, then the arbitration between such parties cannot be said to be an ICA."

...

Iran: Mazaheri announces plans to facilitate foreign investment

May 17, http://www2.irna.ir/en/news/view/menu-237/0805173674201236.htm

Governor of the Central Bank of Iran (CBI) Tahmasb Mazaheri said on Saturday that Iran has drawn up various means of facilitating foreign investment in Iran. Speaking at Iran's Eighth International Petrochemical Forum, Mazaheri said that among the measures taken to facilitate investment was the provision of financial resources.

To improve investment climate, Iran has offered three guarantees comprising of providing investment security, reducing bureaucracy and guaranteeing investments, Mazaheri added. Iranian government would guarantee the foreign investors' initial capital in case of dispossession, nationalization or confiscation, he said.

Moreover, investors can set prices for their products and export them without being worried about government interference, but within Iran's national laws, Mazaheri noted.

...

Canada's Vannessa expects Cristinas gold ruling in July

May 20, http://www.platts.com/Metals/News/6883909.xml?src=Metalsrssheadlines1

Canada's Vannessa Ventures expects the International Centre for Investment Disputes (ICSID) to issue a jurisdiction ruling by July in the case of its $1 billion suit against the Venezuelan government, Vannessa lawyer Mariana Almeida told Platts. "We are confident that we will pass on to the next trial phase after this ruling," she said.

Vannessa alleges that in 2001 the Venezuelan State, through the auspices of the CVG state holding company, wrongfully cancelled its contract to mine Las Cristinas, the potentially lucrative gold mine in southeastern Bolivar state. According to Almeida, the government's lawyers claim that the ICSID does not have jurisdiction in the case since the CVG never acknowledged the legality of the sale/transfer of Las Cristinas from Canada's Placer Dome - the previous Cristinas concession-holder - to Vannessa Ventures.

....

Jordan Minister of Justice Ayman Odeh: "Gov't has strong chance to win Dead Sea oil case"

May 22, http://www.zawya.com/Story.cfm/sidZAWYA20080522031826

Minister of Justice Ayman Odeh said on Wednesday that the government has "a strong chance" of winning the arbitration dispute over oil prospects in the Dead Sea area currently pending in the International Centre for Settlement of Investment Disputes (ICSID).

In the government's first official response to recent legal developments in the dispute between the Natural Resources Authority (NRA) and US company Trans-Global Petroleum, Odeh acknowledged that although the government moved to reject all claims at the ICSID, a May 12 ruling held that three of Trans-Global's claims could not be rejected, and that the case must go through full procedures.

The minister reiterated that the government has "strong chances" of dismissing the claims completely on grounds that they do not fall under the US-Jordan Bilateral Investment Treaty. He added that he expected the process to move forward in the next few months. The government had previously requested to have all of Trans-Global's claims made in an April hearing considered "manifestly without legal merit", under Rule 41 of ICSID Arbitration Rules.

According to Trans-Global's legal representatives, two claims concerning discrimination and unfair treatment were considered legally sufficient by the ICSID to go forward. The third claim upheld by ICSID, concerning the right to consultation among parties to the Bilateral Investment Treaty, was later withdrawn by the oil firm.

...

Jordan: Arbitrators give early win to Trans-Global Petroleum in claims against Jordan

May 18, http://www.bi-me.com/main.php?id=20290&t=1&c=33&cg=4&mset=

A three-arbitrator tribunal has rejected the government of Jordan's motion to dismiss claims by Trans-Global Petroleum (TGP), a US-based independent oil company, against the Jordanian government, alleging discrimination and unfair treatment associated with TGP's oil exploration activities in Jordan. TGP's claims are based on provisions of the Bilateral Investment Treaty (BIT) between the US and Jordan.

TGP's BIT claims arise from a 1997 concession agreement, concluded by TGP and Jordan where TGP carried out oil exploration activities in its Dead Sea licence area for ten years, investing over US$29 million. TGP notified the government in August, 2005 that it made important oil discoveries and then sought a financial partner for fast-tracking the development of its new oil discoveries. The Jordanian authorities through its Natural Resources Administration (NRA) sought, though unsuccessfully, to terminate its contract rights, according to TGP.

A TGP statement said that the NRA then intervened with its partnering effort and effectively forced TGP to surrender a controlling stake in its concession, as well as operating control of the concession to a newly-formed entity owned by a Lebanese billionaire with no experience in oil exploration. Since then Jordanian officials have undertaken a media campaign against TGP, including the denial of any oil discoveries, sought to cancel its custom's exemptions and legal status and refused further communication with TGP, all the while showing strong favouritism to the new entity.

...

Jordan: Int'l arbitration over Dead Sea oil to begin

May 15, http://www.zawya.com/Story.cfm/sidZAWYA20080515032810

AMMAN - The dispute over an oil concession in the Dead Sea area will officially move on to arbitration after the International Centre for Settlement of Investment Disputes (ICSID) declined the government's request to dismiss all of a US company's claims. With ICSID arbitration to commence, World Bank arbitrators will consider whether the Natural Resources Authority actions and treatment of Trans-Global's oil concession violated the US-Jordan Bilateral Investment Treaty. According to NRANRA Director Maher Hijazin, the government was informed of the decision on Tuesday.

"We asked the ICSID to reject all claims on the grounds they are without substance. They only passed three of the claims," but they were enough to proceed with arbitration, Hijazin told The Jordan Times on Wednesday. The government requested to have all of Trans-Global's claims made in an April hearing considered "manifestly without legal merit", under Rule 41 of ICSID Arbitration Rules, according to the NRANRA.

According to Trans-Global's legal representatives, two claims concerning discrimination and unfair treatment were considered legally sufficient by the ICSID to go forward. The third claim upheld by ICSID, concerning the right to consultation among parties to the Bilateral Investment Treaty, was later withdrawn by the oil firm.

...

US: SunOpta, Abengoa technology dispute enters arbitration

http://www.ethanolproducer.com/article.jsp?article_id=4123

A federal judge has sent SunOpta Inc. and Abengoa Bioenergy to arbitration to settle grievances over allegedly pirated technology. Canada-based SunOpta sued Spanish ethanol giant Abengoa Bioenergy, accusing the defendant of appropriating SunOpta's biomass-to-ethanol trade secrets without compensation. Abengoa denied using the technology and accused SunOpta of trying to coerce settlement of residual, contractual disputes by filing the suit in January. The case has been stayed while the arbitration proceedings try to settle the matter.

Bolivia says Telecom Italia moved funds

May 16, http://in.reuters.com/article/governmentFilingsNews/idINN1534636820080516

Bolivia's government said on Thursday that Telecom Italia (TLIT.MI: Quote, Profile, Research) has transferred some $90 million to foreign accounts from its subsidiary Entel, which Bolivia recently nationalized.

Bolivia's leftist government has taken over operations of Entel, but still faces a legal challenge from Telecom Italia over compensation for the nationalization.

"We were expecting this kind of measures because the shareholder (Telecom Italia) never kept funds in Bolivia when it was running the company," public works minister Oscar Coca told reporters in La Paz.

...

See also "International civil society organisations protest Telecom Italia's new attacks and confiscatory measures against Bolivia" http://boliviarising.blogspot.com/2008/05/international-civil-society.html

Tatneft Claims $1bn from Ukraine

May 22, http://www.kommersant.com/p894632/Tatneft_Ukraine/

Tatneft has initiated international legal proceedings against Ukraine, claiming $1.13 billion from it in compensation for the loss of control over Ukrtatnafta. Three more parties of the conflict will file similar suits in the near term to materially increase the claimed amount. The analysts are skeptical about this initiative of Tatneft, reasoning that if the company is finally upheld by the arbitration, it will hardly be able to confirm the verdict in Ukraine.

...

Akhmetov behind Vanco's offshore project

May 15, http://www.ukrainianjournal.com/index.php?w=article&id=6485

Rinat Akhmetov, the wealthiest Ukrainian and a financial sponsor of opposition Regions Party, is one of investors in the off-shore oil exploration project led by U.S. company Vanco Energy, the company announced Thursday.

Akhmetov's DTEK, or Donbas Fuel and Energy Co., Ukraine's biggest privately-owned power conglomerate, is among four investors, while others include Vanco Energy, Integrum Technologies Ltd, and Shadowlight Investments Ltd.

...

Vanco Energy warned earlier this week it would contest the government's licnse decision in international court of arbitration unless the parties make an agreement within the next 60 days.

...

Ukraine Winning in International Investment Arbitration Dispute Under the Energy Charter Treaty

May 6, http://www.gp.ua/en/news/review/itm/38/

Ukraine has won the international investment arbitration dispute upon the claim of AMTO, a company incorporated in Latvia. It is the first dispute with participation of Ukraine under the Energy Charter Treaty. The arbitration proceedings in the case has lingered for over two years. The dispute was examined pursuant to the Regulations of the Arbitration Institute of the Stockholm Chamber of Commerce by an arbitration tribunal consisting of Mr. Bernardo M. Cremades (Spain) as the Chairman, Mr. Per Runeland (Great Britain) as the arbiter designated by the Claimant and Mr. Christer Soderlund (Sweden) as the arbiter designated by the Respondent.

The stated claims of AMTO, which, as the arbitration tribunal has ascertained, was controlled by a Russian citizen, pertained to the alleged violations by Ukraine of its obligations under the Energy Charter Treaty due to allegedly unlawful actions of the Ukrainian courts in the bankruptcy proceedings against State Enterprise "Energoatom", and due to the actions of SE "Energoatom" in respect of AMTO and Elektroyuzhmontazh-10, a significant part of the shares in which had been purchased by AMTO. The key reason for the dispute between the investor and the State consisted in the difficulties of Elektroyuzhmontazh-10 in recovering the debt, as adjudged by the Ukrainian courts, from SE "Energoatom" under a number of agreements on technical maintenance by Elektroyuzhmontazh-10 of Zaporizhzhya Nuclear Power Plant.

The amount of the stated claims of AMTO had been repeatedly altered in the course of the arbitration proceedings, predominantly towards reduction, and made at length more than EUR 20 million.

On March 26, 2008, the arbitration tribunal rendered a unanimous award, in which award it acknowledged its jurisdiction, in spite of a number of the Respondent's objections, and dismissed the Respondent's counterclaim. At the same time, the arbitration tribunal unanimously denied all of the stated claims on the merits of the dispute - regarding violations, as alleged by the Claimant, of Articles 10(1) and 10(12) of the Energy Charter Treaty. The arbitration tribunal also rendered an award to the effect that each of the Parties should independently bear its own legal fees and a half of the arbitration costs, as determined by the Stockholm Arbitration Institute.

It is the fifth completed investment dispute with participation the State of Ukraine under international investment agreements. Three previous disputes upon the claims of investors from the USA were completed in two agreements of the parties of the dispute settlement without monetary compensation on the part of the State (the first cases being J. Lemire Case in 2000 and Western NIS Enterprise Fund Case in 2006). In 2003, Ukraine won its first victory in a dispute upon the claim of the American Company Generation Ukraine, Inc., the claim amount in which was one of the largest in the world history of arbitration disputes exceeding USD 9 billion. In addition, in 2007, Ukraine won its second victory in an ICSID case upon the claim by the Lithuanian Company Tokios Tokeles.

In AMTO Case these were such Ukrainian law offices as "Grischenko & Partners" (S.A.Voytovich, D.I.Grischenko, D.A.Shemelin) and Proxen & Partners (A.G.Alekseyev, O.V.Shevchuk) that acted as legal counsels of the Ministry of Justice of Ukraine. Mannheimer Swartling (Professor Kaj Hobér) and Advokatfirman Svahnström (Sverre B. Svahnström) are the Swedish law firms that acted as the Claimant's legal counsels.

Will Temasek's Plan to Bring the Case to International Arbitration Result in a Victory?

May 13, http://asianmobilenews.blogspot.com/2008/05/will-temaseks-plan-to-bring-case-to.html

Temasek Holdings, Singapore's state-owned investment company, lost its appeal on an Indonesian antitrust ruling and was ordered to sell its stake in either of the country's two biggest mobile-phone operators within a year.

An Indonesian court today ruled in favour of the competition regulator, which said Temasek breached antitrust laws by using indirect stakes in PT Telekomunikasi Selular, known as Telkomsel, and PT Indosat to fix prices. Temasek was earlier asked to sell either stake within two years.

The decision today highlights Temasek's antitrust challenges as it manages more than $100 billion in assets from Indonesia to India. A Temasek-led group in March sold its 56 percent stake in PT Bank Internasional Indonesia to Malayan Banking., helping meet the Indonesian central bank's rules limiting investors' ownership to one bank.

...

Investment law for Yemeni islands on cabinet table soon

May 22, http://www.sabanews.net/en/news154793.htm

The General Authority for Islands Development (GAID) is currently preparing a special law draft to invest in Yemeni island and will be submitted to the cabinet soon for approval.

...

JAMS Moves to Expanded Resolution Center in Santa Rosa

http://www.jamsadr.com//FeatureFull.asp?Feature2ID=91

JAMS, The Resolution Experts, the nation's largest private provider of mediation and arbitration services, announced today that it has relocated and expanded its Resolution Center in Santa Rosa, California. The new Resolution Center is located on the historic east side of Santa Rosa at 50 Old Courthouse Square.

"JAMS continues to see a growth in the demand for ADR services in Santa Rosa and throughout Northern California, and we are excited to move into this new Resolution Center," said Brian Parmelee, JAMS Vice President - West. "The Santa Rosa Resolution Center has long been a convenient location for dispute resolution, and our move and expansion ensures JAMS neutrals and clients a spacious, productive and comfortable hearing space."

In January of this year, JAMS relocated and expanded in the East Bay with a move of the Resolution Center in Walnut Creek to Class "A" office space in Treat Towers in Contra Costa Centre. Santa Rosa is the most recent example of JAMS' expansion efforts in the region.

...

DIAC Graduation ceremony of trainees

http://www.arabianbusiness.com/press_releases/detail/19173

Dubai International Arbitration Centre held a dinner ceremony in Al Murooj Rotana Hotel Dubai, to honor the graduates who participated in the training sessions about Commercial Arbitration, which were organised by the center during April in both Arabic & English.

...

WEBLOGS

Tymoshenko, Vanco offer wildly different stories on Black Sea project

May 12, http://www.dartmouth.edu/~stege/blog/?p=108

Ukrainian Prime Minister Yulia Tymoshenko and American independent petroleum company Vanco Energy both held press conferences today outlying sharply contrasting images of Vanco's Black Sea hydrocarbon development project and throwing the future of Ukraine's deep-water oil and gas production into question.

...

PODCASTS

A Discussion with Robert Carneiro on the Evolution of Dispute Resolution

In this edition IDN examines the dispute resolution methods of early societies, and how they evolved in the last 10,000 years into the mechanisms that we see in today's functioning societies: Mike's guest is American Museum of Natural History curator, anthropologist Robert L. Carniero. Their wide-ranging discussion covers:

This episode is available for download here www.cpradr.org/audio1.asp

EVENTS

ADR Use in IP Cases Discussed at Chicago Conference (report)

May 19, http://www.adr.org/sp.asp?id=34547

The effective use of ADR methods in resolving intellectual property (IP) and licensing disputes was among the topics discussed at the combined Licensing Executive Society International (LESI) Annual Conference and the Licensing Executive Society-U.S. (LES) Spring Meeting.

The conference, held May 6-8 in Chicago, focused on the theme of "Licensing without Borders." More than 750 business executives, licensing professionals and attorneys from around the world attended the conference.

...

Conférence commémorative John Brierley: L'arbitrage international n'est pas de l'arbitrage - 28 mai 2008

http://francais.mcgill.ca/channels/events/item/?item_id=100311

Université McGill. Pavillon Chancellor-Day, Tribunal-école Maxwell-Cohen , 3644, rue Peel

Professeur Jan Paulsson présentera la conférence commémorative John E.C. Brierley sous le thème "L'arbitration internationale n'est pas de l'arbitration".

Gulf conference for local judiciary, May 27 - 28

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

The United Arab Emirates will host an arbitration conference for judges on 27-28 May 2008. Organized under the patronage of His Excellency Dr. Hadef J. Aldhaheri, UAE Minister of Justice, and with the support of the ICC Court, the conference will include presentations and case studies on the implementation of the New York Convention locally.

2008 SIA/PwC Study Preview

A preview of the 2008 International Arbitration Study: Recognition and Enforcement of Foreign Awards, based of the research conducted by the School of International Arbitration, Queen Mary University of London, with the support of PricewaterhouseCoopers, will be held in the first week of June. A second preview will take place during the ICCA Conference in Dublin.

Questions about the study? Contact Prof. Loukas Mistelis or Crina Baltag at School of Law, Queen Mary, University of London (www.schoolofinternationalarbitration.org)

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

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.

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

Sarah Williams takes up her position as the Institute's new Dorset Fellow in Public International Law in July

May 22, http://www.biicl.org/news/view/-/id/95/

The Institute is delighted to announce the appointment of Sarah Williams as the new Dorset Fellow. Sarah will lead the Institute's research and events programme in public international law.

Sarah Williams is currently a lecturer in law at Durham University, where her teaching and research interests include public international law, international criminal law, legal responses to terrorism and international human rights. During 2006 Sarah was a Legal Researcher at the Foreign and Commonwealth Office. In this role Sarah appeared before various United Nations committees and commissions, and advised the British Government on issues of international, foreign and domestic law. From January to March 2008 Sarah was a Visiting Fellow at the Sydney Centre for International Law.

Prior to undertaking postgraduate studies at Durham University in 2001, Sarah practised as a commercial lawyer in Sydney and London. She is admitted as a legal practitioner to the Supreme Court of New South Wales and the High Court of Australia, and as a solicitor in England and Wales.

JAMS Board of Directors Elects Richard Chernick as New Chairman

http://www.jamsadr.com//FeatureFull.asp?Feature2ID=90

Bruce A. Edwards, Esq. and Hon. Edward A. Infante (Ret.) Become New Board Members

JAMS, The Resolution Experts, the nation's largest private provider of ADR services, has a new Chairman of the Board, Richard Chernick, Esq., Vice President and Managing Director of JAMS' Arbitration Practice.

Mr. Chernick will serve a two-year term as Chairman of the Board and replaces outgoing Chairman Hon. William L. Bettinelli (Ret.), who served in that capacity for four years. Mr. Chernick was elected at the Annual JAMS Owners Meeting and Board Meeting earlier this month. In addition, Hon. Edward A. Infante (Ret.) and Bruce A. Edwards, Esq., have been named as new members of the Board of Directors.

"'Richard is a nationally renowned leader in the ADR field and one of the top arbitration experts in the country. His knowledge, skill and diplomacy will be a tremendous asset to the JAMS Board," said Chris Poole, JAMS President and CEO. "I am pleased to have the opportunity to collaborate with him to strengthen JAMS' position as the premier provider of ADR services."

"I am honored to take on this new role at JAMS," said Mr. Chernick. "I look forward to continuing the success of prior Boards, and to furthering JAMS' mission of delivering high quality client service and outstanding pro-bono, community, and JAMS Foundation work."

...

AAA Elects 10 New Board Members

http://www.adr.org/sp.asp?id=34533

The American Arbitration Association elected 10 new members to its board of directors during its recent annual meeting. The newly elected board members include a former U.S. education secretary, a former attorney general of Ireland and other distinguished legal professionals. The annual meeting was held May 8-9 in Washington, D.C.

The new board members are:

BOOKS

Expert Determination

John Kendall, Clive Freedman, James Farrell
ISBN: 9781847030313
Edition: 4th Edition
Publisher: Sweet & Maxwell
Publication Date: April 2008

This work is renowned as the leading text on expert determination. This new edition explains the procedures involved in detail, examines the application of expert determination in a range of commercial sectors, and looks at all the practical issues involved such as tactics during a dispute. It covers the many recent developments in the area, including the expert's risk of prosecution under the Proceeds of Crime Act 2002, the growing international use of expert determination, and how it is being used in new commercial sectors such as outsourcing and utilities.