Transnational Dispute Management - TDM News Digest, The Network for International Arbitration, Mediation and ADR, International Investment Law and Transnational Dispute Management

issue #29, week 46. 13 November 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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Thomas Waelde Advocacy Award for Best Oralist - Gunjan Sharma, New York University School of Law

http://www.fdimoot.org/awards.php

The best individual advocate of the Oral Hearings shall be determined by adding the scores awarded to that oralist in two Preliminary Rounds in which he/she argued. If the oralist participated in more than two Preliminary Rounds, the two Rounds with his/her maximum scores shall be taken into consideration.

NEWS

Millicom Institutes International Arbitration Proceedings Regarding Senegal License [pdf]

November 11, http://www.millicom.com/common/download/download.cfm?companyid=MICC&fileid=248838&filekey=01BC3CAC-30E2-4D7D-A474-DCA4FD0B120C&filename=081111%20Millicom%20institutes%20international%20arbitration%20procedings%20for%20senegal%20license%20FINAL.pdf

Millicom International Cellular S .A . (Millicom) (Nasdaq Stock Market : MICC and Stockholmsbörsen : MIC), the global telecommunications company, today announces that its subsidiaries Millicom International Operations, B .V . (MIO B .V .) and Sentel GSM S .A (Sentel), have instituted arbitration proceedings with the International Center for the Settlement of Investment Disputes (ICSID) against the Republic of Senegal under provisions of Sentel's license and international law . MIO B .V. and Sentel seek compensation for the purported expropriation of the Senegal license and monetary damages for breach of the license.

Also today, the Republic of Senegal instituted court proceedings in Senegal against Millicom and Sentel . In that proceeding, the government alleges that it has cancelled Sentel's license and seeks damages against Sentel and Millicom under various theories . Millicom believes that the action filed by the Republic of Senegal is baseless and ignores the agreement between Sentel and the Republic of Senegal to submit any dispute concerning the license to an international arbitration forum.

Millicom's commitment to its business in Senegal remains strong and MIO B .V . and Sentel intend to vigorously pursue all available remedies in the matter before the international arbitration forum .

Kuwait new tax law to promote foreign investment

November 12, http://www.zawya.com/story.cfm/sidZAWYA20081112140704/

More than 30 vice presidents and financial controllers of multinational, regional and Kuwaiti companies gathered in Dubai in October for a Deloitte seminar on recent changes to the Kuwait Tax Decree. The event included an overview of Kuwait taxation in light of law no. 2 of 2008 and its associated bylaw, as well as a comparison with Kuwait tax decree no. 3 of 1995 and the current practices of Kuwait's tax authorities.

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IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation

November 11, http://business.timesonline.co.uk/tol/business/law/reports/article5126355.ece

Enforcing part of arbitration - Court of Appeal. Judgment October 21, 2008

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LORD JUSTICE TUCKEY said that the question whether part of an international arbitration award could be enforced was one of some importance upon which there was no English authority.

The purpose of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York (1976) (Cmnd 6419), adopted by the 1976 Act, was to ensure the effective and speedy enforcement of international arbitration awards.

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Sintez Sues Firm Over TGK-2 Buy

November 11, http://www.themoscowtimes.com/article/600/42/372274.htm

Energy firm Sintez Group said Monday that it was suing German utility RWE for $1.41 billion for breaking its agreement to jointly buy electricity generator TGK-2. "Sintez Group has filed a claim against RWE in the London Court of International Arbitration in relation to RWE's breach of its obligations in relation to the joint acquisition of TGK-2 shares," Sintez said in a statement.

RWE spokespeople declined to comment, and Sintez spokesman Alexander Levin declined to provide further details of the suit.

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Rio Tinto Alcan invests in the future of international arbitration law at McGill

November 11, http://www.mcgill.ca/newsroom/news/item/?item_id=102667

$3-million gift to create new Faculty of Law chair named in honour of L. Yves Fortier

As McGill University enters the second year of its historic Campaign McGill, new support for the Faculty of Law has arrived from international aluminium leader, Rio Tinto Alcan. The $3-million gift from the Rio Tinto Alcan Canada Fund will allow McGill's Faculty of Law to establish the L. Yves Fortier Chair in International Arbitration and International Commercial Law.

The chair will honour McGill alumnus L. Yves Fortier for his leadership in the practice of law and at the international bar in the field of arbitration. One of the three Campaign McGill chairs, Fortier is a former chairman of the Alcan board of directors and currently serves as a non-executive director of Rio Tinto. A Rhodes Scholar and former president of the Canadian Bar Association, Fortier is the longstanding chairman of Ogilvy Renault, one of Canada's best known law firms. He is also one of the world's foremost arbitrators, and has served as Canada's ambassador to the United Nations, president of the UN Security Council and president of the London Court of International Arbitration.

"Yves Fortier, a member of the fabled class of 1958 in the Faculty of Law, stands as one of the finest models for our students in the modern history of the faculty," said Faculty of Law Dean Nicholas Kasirer. "Mr. Fortier has established one of the most imaginative and forward-looking brands of international legal practice in this country. I salute his colleagues at Rio Tinto Alcan for creating the Yves Fortier Chair, which signals to the world that Canada, Quebec, Montreal and McGill's Faculty of Law represent the future of this emerging field of law."

The scholar appointed to the L. Yves Fortier Chair will take up a leadership role in the bilingual, trans-systemic program of legal education at McGill's Faculty of Law. He or she will lead advances in the field of international arbitration, as well conduct research to help shape the future of both the practice and understanding of international law.

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TGS and Wavefield settle arbitration case

November 9, http://www.tgsnopec.com/newsroom/newsroom_details.asp?id=396

TGS and Wavefield have today agreed to settle the dispute related to the merger process between the two companies. Under terms of the settlement, Wavefield will pay USD 12.5 million to TGS and TGS will charter a 2D vessel from Wavefield at favorable rates for an 18 month period beginning in April 2009. TGS will also have the option to hire up to 24 months of un-contracted 3D vessel capacity from Wavefield over the next four years at favorable rates, securing Wavefield engagement for vessel capacity. The arbitration process already in progress will be stopped and all claims either party have against the other party, its shareholders, board members, employees or advisors are waived.

New ICJ Judges elected

7 November 2008, http://www.icj-cij.org/presscom/files/3/14863.pdf?PHPSESSID=d9fdeda3cd154f35ed66a19468c3523e

The General Assembly and the Security Council of the United Nations yesterday elected five Members of the International Court of Justice (ICJ) for a term of office of nine years, beginning on 6 February 2009.

Judges Awn Shawkat Al-Khasawneh (Jordan) and Ronny Abraham (France) were re-elected as Members of the Court. Messrs. Antônio Augusto Cançado Trindade (Brazil), Christopher Greenwood (United Kingdom of Great Britain and Northern Ireland), and Abdulqawi Ahmed Yusuf (Somalia) were elected as new Members of the Court.

The biographies of Messrs. Cançado Trindade, Greenwood and Yusuf can be found on the Court's website (www.icj-cij.org) as an annex to this press release. The biographies of Judges Al-Khasawneh and Abraham can be found under "The Court" on the same website.

In February 2009 the Court as newly constituted will proceed to elect from among its Members a President and a Vice-President, who will hold office for three years.

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Petrobras: Arbitration Chamber hands down a decision regarding the Pasadena refinery

October 31, http://www.agenciapetrobrasdenoticias.com.br/en_materia.asp?id_editoria=11&id_noticia=5794

Petrobras informs that an interim award issued in connection with the arbitration process brought to the International Centre for Dispute Resolution between its wholly-owned subsidiary Petrobras America Inc. (PAI) and Astra Oil Trading NV (Astra), which own the Pasadena Refining System Inc. - PRSI, located in Texas, handed down on October 24 2008, held that the put option was validly exercised by Astra against PAI, for the sale of its stakes in PRSI to Petrobras America.

The award also considered that the exercise of the put option by its affiliates in PRSI Trading Company LP, an entity formed to market, sell, and distribute the crude oil and refined products for the refinery, was valid.

If the interim award is maintained, PAI and its affiliates will remain with 100% of the stakes in both companies.

The exercise price to be paid was reserved for future proceedings.

Notwithstanding the lack of a price determination, the companies are working together to transition all operational, managerial and financial responsibilities to PAI immediately.

UAE: International Arbitration is Essential for Prospective Investors

November 04, http://www.uaedailynews.com/uae/2843.html

The future role of courts, Arab commercial arbitration laws and arbitration in connection to attracting foreign direct investment to the region and the importance of arbitration in settling commercial disputes arising from cross-border agreements will come under the spotlight at a Dubai conference on 'Activating Commercial Arbitration in Arab Countries' to be held at the Creek Sheraton on November 12 and 13.

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Rwanda: Country Accedes to UN Convention on Commercial Arbitration

November 3, http://allafrica.com/stories/200811040008.html

The small African Great Lakes nation of Rwanda has become the latest country to accede to a 50-year-old United Nations convention on commercial arbitration, the UN Commission on International Trade Law (UNCITRAL) announced today.

Rwanda becomes the 143rd State Party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention, as a result of the accession. The treaty will enter into force for Rwanda on 29 January next year.

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UK mediators help clear Indian backlog

November 3, http://www.thelawyer.com/cgi-bin/item.cgi?id=135481&d=415&h=417&f=416

The Indian government has called on UK mediators as it attempts to clear a backlog of 29 million disputes that are clogging up its court system.

It is expected that the move will allow UK lawyers to join India's International Centre for Alternative Dispute Resolution (ICADR), taking India's legal sector a step closer to liberalisation.

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Mediator Directory sets standard in transparency

http://www.themediatormagazine.co.uk/news/1-latest/54-mediator-directory-sets-standard-in-transparency

Mediators who are serious about transparency may now distinguish themselves in the marketplace with the Transparent Mediator kitemark, available through The Mediator Directory.

According to site owner Matthew Rushton, 'The mark represents an absolute standard of transparency which users are keen to see mediators adopt.'

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Centerra talks continue with Mongolia, Kyrgyz govts

October 31, http://www.miningweekly.com/article.php?a_id=146585

Gold-miner Centerra Gold is continuing talks with the governments of Mongolia and Kyrgyzstan, to resolve investment agreements for its operations in the countries, president and CEO Stephen Lang said on Friday.

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HKMA: Mediation services set for Lehman Bros cases

October 31, http://www.news.gov.hk/en/category/businessandfinance/081031/html/081031en03015.htm

The Hong Kong International Arbitration Centre has been appointed to provide mediation and arbitration services to help investors in Lehman-Brothers-related products resolve compensation issues with banks.

The Monetary Authority today said it will co-ordinate referrals and pay the share of the fee for these services on behalf of two types of investors.

They include investors whose complaints have already been referred by the authority to the Securities & Futures Commission, and investors whose complaint has resulted in a finding against a relevant individual or executive officer by either the authority or the commission.

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Arbitrator's Interim Award Completely Vindicates Fisker Coachbuild, LLC & Fisker Automotive, Inc. in Tesla Lawsuit [pdf]

November 3, http://www.fiskerautomotive.com/images/uploads/Fisker%20Arbitration%20Results%2011%203%2008.pdf

JAMS Arbitrator Issues Interim Award in Favor of Fisker on All Claims

Fisker Automotive Inc, and Fisker Coachbuild, LLC today announced that a JAMS Arbitrator has issued an interim award finding in favor of Fisker Coachbuild, LLC, Fisker Automotive, Inc., Henrik Fisker and Bernhard Koehler and against Tesla Motors Inc. on all claims.

The Arbitrator selected by the parties to decide Tesla's allegations ruled in favor of Fisker Coachbuild, LLC., Fisker Automotive Inc., Henrik Fisker and Bernhard Koehler. In so doing, the Arbitrator expressly found that "the evidence is overwhelming that Fisker did nothing wrong" and that "Tesla's assertion of violations of the Uniform Trade Secrets Act by Fisker were baseless and neither brought nor pursued in good faith."

"The finding by the Arbitrator says it all," said Thomas Newmeyer of Newmeyer & Dillion, Fisker's lawyers in the case. "My clients have been completely vindicated of any wrongdoing."

"We are very pleased with the ruling in favor of Fisker Coachbuild, LLC, Fisker Automotive, Inc., Bernhard Koehler and myself," said Henrik Fisker, CEO of Fisker Automotive Inc. "Despite the burden and expense of Tesla's lawsuit, Fisker Automotive, Inc. has been able to continue with its business plan and production schedule. We are still on schedule to deliver our first production vehicle, the Fisker Karma plug-in hybrid, 4 door luxury sports sedan by 4th Quarter 2009. Today's world needs new alternative energy vehicles and the focus should be to build and deliver these vehicles as soon as possible."

Paul Hastings Successfully Defends Leading Korean Pharmaceutical Company in International Arbitration Dispute

November 3, http://www.lawfuel.com/show-release.asp?ID=19865

Paul, Hastings, Janofsky & Walker LLP, an international law firm, successfully defended Dong-A Pharmaceutical Co. Ltd., a leading Korean pharmaceutical company, in an international arbitration brought by a U.S. biotech venture. The claim, which sought damages in excess of $100 million, was terminated by the Tribunal on October 15, 2008.

The U.S. claimant alleged that Dong-A breached the terms of a patent and technology license agreement that covered an experimental cancer vaccine therapy. In response, Dong-A counterclaimed for termination of the license agreement. In April 2007, the matter was brought before three arbitrators appointed by the International Centre of Dispute Resolution of the American Arbitration Association.

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Senegal's Faleme mine project on track: minister

October 24, http://africa.reuters.com/business/news/usnJOE49N0NL.html

Senegal's Faleme iron ore mine is expected to start in 2011 despite a court appeal from South Africa's Kumba Iron Ore contesting rights to the mine, a minister said on Friday.

Anglo American Plc's unit Kumba, Africa's top producer of the raw material used to make steel, launched an arbitration process against Senegal and a firm in the country after the government ordered it to stop exploration at the mine.

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