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

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issue #32, week 51. 16 December 2008
Prepared by TDM and Aloysius Gng (CEPMLP/Dundee)

NEWS

US Treasury Welcomes Entry Into Force of New Tax Treaties, Protocol

December 15 2008, HP-1327, http://www.treas.gov/press/releases/hp1327.htm

The Treasury Department announced today that a tax treaty protocol and two new tax treaties have entered into force.

New tax treaties (and accompanying protocols) with Bulgaria and Iceland and a protocol amending the existing tax treaty with Canada entered into force December 15, 2008. All are generally effective for tax years beginning on or after January 1, 2009. Certain provisions of the treaties and protocols, however, have different effective dates.

...

Avoiding the American malaise in commercial arbitration

http://www.lawyersweekly.ca/index.php?section=article&articleid=817

There is a debate in the U.S. on whether commercial arbitration is "broken" and can be fixed. In Canada, commercial arbitration still enjoys a good reputation, but parties need to be aware of how the present malaise in the U.S. developed, and how we can avoid similar issues in Canada.

...

India Exchanges Instruments of Ratification on BIPA with Iceland

December 16, http://pib.nic.in/release/release.asp?relid=45695

Instruments of Ratification of the Bilateral Investment Promotion and Protection Agreement (BIPA) between India and Iceland were exchanged, here today. Dr. Anup K. Pujari, Joint Secretary, Ministry of Finance and Dr. Gunnar Palsson, Ambassador Extraordinary and Pleni Potentiary of the Republic of Iceland exchanged these Instruments of Ratification to give effect to the Agreement between the two countries. Dr. Arvind Virmani, Chief Economic Advisor, Government of India presided over the ceremony which was attended by senior officers and diplomats of both the countries.

The process of entering into a BIPA between these countries was initiated in the year 2005 with the exchange of draft model texts of the two countries. The draft text of the Agreement, which seeks to promote and protect investments from either country in the territory of the other country with the objective of increasing bilateral investment flows, has been finalised after the first round of negotiations held on 5th and 6th June 2006. The Indian Model Text was the basis of the negotiations. The Cabinet had approved the signing and ratification of the BIPA with Iceland in June 2007 and the Agreement was signed on 29th June, 2007 when the then Finance Minister, Shri P. Chidambaram visited Iceland.

The Agreement requires both the countries to encourage and create favourable conditions for investors of both the countries, to make investments it their territory and to admit investments in accordance with their laws. Investments from either country in the territory of the other country are to be accorded National Treatment and Most Favoured Nation Treatment which means that the investment shall be provided a treatment which shall not be less favourable than that provided by the country to investments of its own investors or investors from any other country. Besides, investors are to be provided Most Favoured National Treatment in respect of returns on the investment.

BIPA also provides elaborate dispute resolution mechanism to guide settlement of disputes between an investor and a host Government as well as between the two Governments. Dispute resolution mechanism includes resource to negotiations, conciliation and international arbitration.

India has so far signed BIPAs with 73 countries including United Kingdom, Russian Federation, Australia, France, Germany and Malaysia. The Bilateral Agreement between India and Iceland, the Instruments of Ratification of which have been exchanged today seeks to serve as a catalyst in boosting investment flows between the two nations.

MAXIMUS Announces Settlement of Arbitration Matter

December 12, http://phx.corporate-ir.net/phoenix.zhtml?c=88279&p=irol-newsArticle_PR&t=Regular&id=1235658&

MAXIMUS, a leading provider of government services, announced today that it has resolved the arbitration matter with Accenture that has been outstanding since early 2007. Concurrently, the parties have also resolved outstanding contract claims by the Texas Health and Human Services Commission ("HHSC") arising out of the contract between the Texas Access Alliance (comprised of Accenture as prime contractor and MAXIMUS as subcontractor) and HHSC. In connection with this settlement, MAXIMUS will record a pre-tax charge of $37.5 million ($23.2 million after-tax) in legal and settlement expense in the fourth quarter of fiscal 2008.

Under terms of the agreement, MAXIMUS will pay $27.5 million in cash, net of insurance proceeds from its primary insurance carrier. In addition, MAXIMUS will provide $10 million in future services to HHSC. MAXIMUS is also pursuing additional insurance reimbursement from its excess insurance carriers, but the amount of any additional recoveries cannot be determined at this time.

...

Arbitration panel says Port Authority still on hook for penalty payments at WTC site

December 12, http://www.rew-online.com/news/story.aspx?id=538

The Port Authority announced that Larry Silverstein won an arbitration ruling that entitles him to $300,000 a day from the authority for every day it is late in delivering three development parcels at the World Trade Center site where Silverstein plans to build a trio of office skyscrapers.

The authority has been paying Silverstein the daily penalty since July, which compensates the yearly rent that Silverstein pays to lease the site from the Port Authority and also charges that are imposed on Silverstein as a consequence of the delays including the costs of construction delays.

...

Bethel's group yet to respond to arbitration demands

http://www.thenassauguardian.com/bixex/303649757556937.php

FilmInvest had yet to answer a request to settle a dispute with Gold Rock Creek through the International Chamber of Commerce, said the head of Grand Bahama's film studio, arguing legal action will proceed even without its active participation.

Ross Fuller is also confident the internationally recognized arbitration process will conclude in his favor, the panel agreeing FilmInvest did indeed breach a sales agreement to buy the Grand Bahama studio. Such a judgment would then be transferred to the Bahamian courts for enforcement.

...

Ecuador Defaults on Foreign Debt

December 12, http://upsidedownworld.org/main/content/view/1627/1/

Rafael Correa declared on Friday that Ecuador would not make a $30.6 million interest payment on $510 million in bonds due in 2012, calling the debt illegal.

The default on the Global Bonus 2012 bonds means that Ecuador is also defaulting on Global 2015 and 2030 bonds. The default totals $9.937 billion, 19 percent of the country's GDP. Ecuador has assembled a legal team to fight expected lawsuits and hopes to use the default as leverage to renegotiate the debts.

...

Pitts-Robateau irate at Elrington's compromis

December 12, http://www.amandala.com.bz/index.php?id=7874

Only days after its signing in Washington, D.C., the compromis or special agreement proposed to be submitted to the International Court of Justice (ICJ), for a final and binding determination on the territorial dispute between Belize and Guatemala, has sparked vigorous public debate.

One of the foremost proponents for the ICJ, Belize Minister of Foreign Affairs Wilfred "Sedi" Elrington, argues that, it's either we go to ICJ or take up arms in defense of Belize - perceived by some to be an outright attempt to scare Belizeans into voting for the ICJ. Elrington told the media at a press conference on Tuesday in Belize City that he would be crusading for a "yes" vote, only because he has full confidence that Belize would win its case.

...

KPMG Fails in Infringement Lawsuit

December 12, http://www.marketwatch.com/news/story/KPMG-Fails-Infringement-Lawsuit/story.aspx?guid=%7B599854AB-D9E5-41BB-B4B4-048ED3E4A942%7D

Wahaha Group Co., Ltd. announced that in the case between Suqian Wahaha (including Suqian Wahaha Hengfeng Food Company and Suqian Wahaha Beverage Company) and KPMG China ("KPMG"), the Suqian Intermediate People's Court has been ruled against KPMG. As a result, KPMG must apologize publicly to Wahaha and pay RMB300,000 in compensation for damages suffered by Suqian Wahaha.

...

Meanwhile, the first receiver report submitted by KPMG shows that, as introduced by Lovells, KPMG engaged AllBright law offices to provide advice on the measures to be adopted in China. However, KPMG actually appointed a lawyer who provided legal services to Danone in the Hangzhou trademark arbitration.

...

ICSID and Entel case hearing date set

December 11, http://www.telegeography.com/cu/article.php?article_id=26468

BNamericas is reporting that the World Bank's International Centre for the Settlement of Investment Disputes (ICSID) has announced a date for the first hearing regarding the renationalisation of Bolivian telco Empresa Nacional de Telecomunicaciones (Entel). The first hearing in the arbitration process will take place on 16 December in The Hague.

...

Bolivia will adduce that ICSID is not court to deal with ETI´s arbitration

December 14, http://abi.bo/index.php?i=noticias_texto&j=200812141831433x

Bolivia will adduce this Tuesday to the International Centre for Settlement of Investment Disputes (ICSID), that is not court to deal with the resource of arbitration that was interposed by the multinational Euro Telecom International (ETI), former majority shareholder of Telecommunications (Entel).

In this way, Héctor Arce Zaconeta minister without Portfolio responsible for the Legal Defense of the State Recoveries said that the first proceedings will be carried out in Holland.

...

ADR: The Nigerian experience

December 15, http://www.tribune.com.ng/16122008/mon/law.html

The Chartered Institute of Arbitrators (Nigeria) is a professional body dedicated to the promotion, facilitation and determination of disputes by arbitration, mediation and conciliation. The institute is an autonomous, independent national professional body. It is not an affiliate of any body, be it professional or otherwise, be it national or extra-national.

...

Australia: Review of International Arbitration Act 1974

http://www.ag.gov.au/internationalarbitration

On 21 November 2008, the Attorney-General announced a review of the International Arbitration Act 1974. This Act regulates international arbitration in Australia.

The objects of the review are to consider whether the Act should be amended to:

• ensure it provides a comprehensive and clear framework governing international arbitration in Australia
• improve the effectiveness and efficiency of the arbitral process while respecting the fundamental consensual basis of arbitration, and
• consider whether to adopt 'best-practice' developments in national arbitral law from overseas.

As part of the review, the Attorney-General's Department is seeking submissions on the issues raised in a submission paper outlining areas for review. Submissions on the discussion paper are sought by 16 January 2009.

Pacific Rim Files Notice of Intent to Seek CAFTA Arbitration

December 09, http://www.pacrim-mining.com/s/News_2008.asp?ReportID=331320&_Type=2008-News-Releases&_Title=Pacific-Rim-Files-Notice-of-Intent-to-Seek-CAFTA-Arbitration

Pac Rim Cayman LLC, a Nevada corporation and a wholly-owned subsidiary of Pacific Rim Mining Corp. (collectively with Pac Rim Cayman LLC, "Pacific Rim" or the "Company"), has filed a Notice of Intent ("NOI") to commence international arbitration proceedings against the Government of El Salvador under the Central America-Dominican Republic-United States of America Free Trade Agreement ("CAFTA-DR" or "CAFTA"). Pacific Rim will be claiming significant monetary damages (several hundred million dollars) in the arbitration if a satisfactory resolution is not found within 90 days following the filing of the NOI. The Company has retained the Washington, DC-based international law firm of Crowell & Moring, LLP to represent it in the arbitration.

Conference Call

Pacific Rim will host a conference call this morning to discuss the details of this CAFTA action. The conference call will commence at 11:00 am Eastern time (8:00 am Pacific time) and is open to all interested parties by dialing 1-800-762-8973 toll free from Canada or the US, or 1-480-629-9572 from international locations, approximately 10 minutes prior to the scheduled start time.

Presenting on behalf of Pacific Rim will be Tom Shrake, President and CEO. The Company's legal counsel in this matter, Timothy McCrum of Crowell & Moring, LLP, will additionally be on line to answer questions.

A replay of the call will be available from 3 hours following its completion until December 16, 2008. The replay dial-in number is 1-800-406-7325 in Canada or the US and 1-303-590-3030 from international locations. The access code to listen to the replay is 3952530.

Basis of Claim

By exploring, discovering and delineating gold deposits in El Salvador while at all times operating in full compliance with El Salvadoran law, Pacific Rim has developed precious metal assets higher in value than the investment of over US$ 75 million undertaken in El Salvador by the Company and its predecessors. The Company's claims under CAFTA are based on the Government of El Salvador's breaches of international and El Salvadoran law arising out of the Government's failure, within its own mandated time frames and pursuant to the clear terms of applicable laws, to issue exploration and exploitation permits to which the Company is entitled. This inaction by the Government of El Salvador has resulted in significant loss to the Company, its employees, and the local communities.

The Company's mandate to its shareholders is to build a gold mining company that explores and develops gold deposits in an environmentally responsible manner. In meeting its responsibilities, a mine design for the Company's El Dorado gold project was submitted to the Government of El Salvador in its final form in October 2006, over two years ago. Development of the El Dorado project has received support from an increasing majority of El Salvadoran citizens, including national and local organizations and their leaders. Despite the inclusion of carefully engineered environmental protections in the El Dorado development and operating plans and strong public support, the Government of El Salvador has not met its responsibility to issue the Company additional permits. Therefore it is with great regret that the Company has concluded it must seek a legal remedy to secure its right to develop the El Dorado project.

"It is with deep regret that we must now pursue our legal rights through the initiation of a CAFTA action and we intend to pursue these rights vigorously," states Tom Shrake, President and CEO of Pacific Rim. "Sadly, it is not just Pacific Rim whose rights are being compromised, but the rights of all Salvadorans and foreign investors. Local communities and social and environmental agencies are being denied the benefits of our community programs. The country is being denied a project that sets new environmental precedents for the Americas and that is destined to become a significant contributor to the economy in the midst of a worldwide economic crisis. With the mine operating, Pacific Rim would be the single greatest contributor to the tax revenues of the country, and rather than providing thousands of new lucrative jobs for El Salvadorans, we have had to dismiss over 200 local workers in the past few months. Nonetheless, we remain committed to resolving our permitting impasse and throughout the mandated 90-day period prior to arbitration, will continue to seek a solution to this dispute with the government of El Salvador so that we can put our employees back to work building and operating a safe and environmentally sound mine that provides the engine for a sustainable economy in the northern region of El Salvador as well as benefiting the nation as a whole."

Arbitration Process

Under CAFTA rules and procedures, involved parties have 90 days following the filing of the NOI to resolve their dispute amicably. If a resolution is not forthcoming in this timeframe, the Company has the right to commence arbitration proceedings against El Salvador on March 9, 2009. The arbitration will be administered under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States and under the Rules of Procedure for Arbitration Proceedings of the International Centre for Settlement of Investment Disputes ("ICSID"). ICSID is an affiliate of the World Bank and is headquartered in Washington, D.C.

In the arbitration, the Company intends to request, among other things, that the arbitral tribunal award: 1) compensation for the money Pacific Rim has spent in pursuit of its investments in El Salvador; 2) damages for the loss of value that has been created by the Company through its efforts and investments resulting from the Government's wrongful conduct; 3) costs associated with preparation for and conduct of the arbitration proceedings; and 4) pre- and post- award interest on all claims. Once an arbitral tribunal is constituted, the length of the ensuing proceedings may range from approximately one to three years.

...

Orbotech Ltd.: Dispute Reference to Arbitration

December 8, http://phx.corporate-ir.net/phoenix.zhtml?c=71865&p=irol-newsArticle&ID=1233528&highlight=

ORBOTECH LTD. announced that on December 4, 2008, the Company was notified by GE Healthcare, a unit of General Electric Company ("GE"), and its division GE Healthcare Systems Israel Ltd. ("GEMSI"), that it is referring a dispute with the Company and its subsidiary, Orbotech Medical Solutions Ltd. ("OMS") to arbitration in Israel in accordance with the terms of an agreement between the Company and GEMSI from December 2004 (the "Agreement") which had been assigned to OMS and which expired in December 2007. The dispute relates, among other things, to a claim by GEMSI that OMS has an obligation to supply it with CZT modules at a specific price per module. OMS believes it is under no obligation to supply these modules. The proceeding is at an early stage, an arbitrator has yet to be appointed and the Company and OMS have not yet received a statement of claim. Based on the information currently available to them, the Company and OMS believe they have good defenses against any such claim, which they intend to defend vigorously.

In addition, a separate dispute which is not under the Agreement is currently the subject of litigation between the Company and GE in the United States District Court for the Central District of California. On November 4, 2008, GE filed a complaint against the Company claiming breach of contract and requesting specific performance, injunctive relief, declaratory relief and damages. GE also filed a motion for a preliminary injunction. The dispute at issue in that matter relates to GE's claim that OMS has an obligation to supply GEMSI with 850 CZT modules. The suit is in preliminary stages and the Company will be filing a motion to dismiss GE's complaint for lack of personal jurisdiction, improper service and inconvenient forum and to continue GE's motion for a preliminary injunction until after the court's ruling on the Company's motion to dismiss. The Company believes it has good arguments to dismiss GE's complaint as well as good arguments on the merits should the court determine it will hear the case and intends to defend it vigorously.

Haemacure: no longer obligated to make the milestone payments

December 04, http://www.haemacure.com/en/page.ch2?uid=Pressreleases

...

The successful operation qualification of the production equipment is one of three milestones the achievement of which obligates CSL Behring AG ("CSL") to pay to Haemacure US$4.5 million in total, pursuant to a settlement agreement entered into in 2002 in relation to its Hemaseel project. The achievement of each milestone obligates CSL to pay Haemacure US$1.5 million.

As previously announced, CSL has advised Haemacure that, in its view, it is no longer obligated to make the milestone payments. Haemacure strongly disputes the position of CSL and has, as a result, filed a request for arbitration with the International Court of Arbitration of the International Chamber of Commerce to assert its right to collect the contractual milestone payments and, in particular, the payment due upon the operation qualification of production equipment.

...

Cemex: World Bank unit to hear Venezuela dispute

December 4, http://www.salon.com/wires/ap/business/2008/12/04/D94SA71O0_lt_mexico_cemex/index.html

A World Bank arbitration division has agreed to consider a complaint by Mexican cement giant Cemex SAB against Venezuela's nationalization of its local cement plants, a company spokesman said Thursday.

Cemex, the world's third-largest cement maker, has called the confiscation of its assets a "flagrant violation" of Venezuela's constitution and its expropriation laws.

...

See also http://english.eluniversal.com/2008/12/04/en_eco_art_cemex-requests-the-w_04A2156563.shtml

Court to hear 1.6 bln dollar Chevron case against Ecuador

Dec 4, http://www.breitbart.com/article.php?id=081205001426.2zhcxyab

An international court has agreed to hear a 1.6-billion-dollar case brought by US oil giant Chevron against Ecuador in a long-running dispute over alleged environmental damage, the company said Thursday.

Chevron filed the complaint at the Permanent Court of Arbitration in The Hague arguing that Quito had violated a bilateral investment agreement. Under the contract signed with Ecuador, Quito was barred from selling abroad crude oil delivered by Chevron, company spokesman James Craig told AFP.

Brazil's Amorim: Ecuador Default Bad for South American Relations

December 3, http://www.easybourse.com/bourse-actualite/marches/brazil-s-amorim-ecuador-default-bad-for-s-american-relations-573094

Ecuador's threat to default on a loan from Brazil's BNDES National Development Bank will have a negative impact on wider relations and integration among South American nations, Brazilian Foreign Relations Minister Celso Amorim said Wednesday.

...

"How can I, as foreign relations minister, give backing for loans to a country that says without warning that it won't pay a previous loan?" he said.

...

Hearing on Petrobangla-Chevron dispute deferred by 5 months

December 4, http://www.thefinancialexpress-bd.info/search_index.php?page=detail_news&news_id=52509

The hearing on the dispute between the state-owned Petrobangla and the US-based oil company Chevron over four per cent wheeling charge has been deferred by five months, reports UNB.

According to official sources, the hearing will now be held on May 18 next year at the World Bank's international arbitration court in Washington.

The hearing was deferred on Chevron's request to the arbitration court - International Centre for Settlement of Investment Dispute (ICSID) in Hague.

...

Illinois Federal Court Finds That Arbitrator Cannot Compel Prehearing Depositions of Non-Parties Under the Federal Arbitration Act

December 3, http://www.insurereinsure.com/BlogHome.aspx?entry=1197

Plaintiffs Matria Healthcare LLC f/k/a Matria Healthcare, Inc. ("Matria") moved to compel the depositions of Angus M. Duthie and Thomas Hannon, non-parties in an arbitration that was pending before the American Arbitration Association. See Matria Healthcare, LLC, et al. v. Duthie, et al., No. 08-C-5090 (N.D. Ill. Oct. 6, 2008). The U.S. District Court for the Northern District of Illinois denied Matria's motion to compel, finding that "[b]y its own terms, the [Federal Arbitration Act's ("FAA")] subpoena authority is defined as the power to compel non-parties to appear before them; that is, to compel testimony by non-parties at the arbitration hearing. A deposition simply does not fall within those terms." Relying on decisions addressing this issue from the U.S. Court of Appeals for the Third and Fourth Circuit, as well as numerous other federal district courts, the court held that the arbitrator lacked authority to compel prehearing depositions under the FAA.

...

More Legal Information From Moscow

December 3, http://www.slaw.ca/2008/12/03/more-legal-information-from-moscow/

The Russian state news agency RIA Novosti has established a law agency to cover new developments taking place in Russia's legal system, a RIA Novosti deputy editor-in-chief said on Wednesday.

The Agency for Legal and Judicial Information (APSI), set up jointly with Russia's Supreme Court, Constitutional Court and Supreme Court of Arbitration, is due to begin its work in the near future, Maxim Filimonov said.

...

ICSID

Branimir Mensik v. Slovak Republic (ICSID Case No. ARB/06/9)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Outcome of Proceeding: The Tribunal issues an order for the discontinuance of the proceeding on December 9, 2008, for lack of payment of advances, pursuant to Regulation 14(3)(d) of the ICSID Administrative and Financial Regulations.

Aguaytia Energy, LLC v. Republic of Peru (ICSID Case No. ARB/06/13)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Outcome of Proceeding:

Award rendered on December 11, 2008.

Itera International Energy LLC and Itera Group NV v. Georgia (ICSID Case No. ARB/08/7)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Date of Constitution of Tribunal

Constituted: December 11, 2008

Mobil Investments Canada Inc. and Murphy Oil Corporation v. Canada (ICSID Case No. ARB(AF)/07/4)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Respondent's request of November 6, 2008, is declined on December 10, 2008)

Hrvatska Elektroprivreda d.d. v. Republic of Slovenia (ICSID Case No. ARB/05/24)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Available on the ICSID Website:

Order Concerning the Participation of a Counsel (May 06, 2008)
English (Original)

Barmek Holding A.S. v. Republic of Azerbaijan (ICSID Case No. ARB/06/16)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the procedural calendar is vacated, pursuant to the parties' agreement, on December 11, 2008)

Joseph C. Lemire v. Ukraine (ICSID Case No. ARB/06/18)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal holds a hearing on the merits in Paris on December 8-12, 2008)

Giovanna a Beccara and others v. Argentine Republic (ICSID Case No. ARB/07/5)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal issues a procedural order concerning production of documents on December 12, 2008)

Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V. v. Republic of Paraguay (ICSID Case No. ARB/07/9)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Respondent file a post-hearing brief on December 8, 2008)

Tanzania Electric Supply Company Limited v. Independent Power Tanzania Limited (ICSID Case No. ARB/98/8)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Pending (the Respondent files a reply on jurisdiction on December 4, 2008)

Sempra Energy International v. Argentine Republic (ICSID Case No. ARB/02/16)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Pending (the ad hoc Committee holds a hearing on the stay of enforcement of the award in Washington, D.C., on December 8, 2008)

Fondel Metal Participations B.V. v. Republic of Azerbaijan (ICSID Case No. ARB/07/1)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Pending (the Tribunal issues a procedural order concerning document production on December 9, 2008)

Nations Energy, Inc. and others v. Republic of Panama (ICSID Case No. ARB/06/19)

Pending (the Tribunal issues a detailed procedural order concerning the Respondent's request for bifurcation on September 22, 2008)

The Rompetrol Group N.V. v. Romania (ICSID Case No. ARB/06/3)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Pending (the Claimant files a memorial on the merits on December 8, 2008)

Meerapfel Söhne AG v. Central African Republic (ICSID Case No. ARB/07/10)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Pending (the Respondent requests an extension of one month to file the counter-memorial on December 5, 2008)

AES Summit Generation Limited and AES-Tisza Erömü Kft. v. Republic of Hungary (ICSID Case No. ARB/07/22)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Pending (the Tribunal issues a procedural order concerning the application of a non-disputing party to file a written submission pursuant to ICSID Arbitration Rule 37(2) on November 26, 2008)

Inmaris Perestroika Sailing Maritime Services GmbH and others v. Ukraine (ICSID Case No. ARB/08/8)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal holds a first session by telephone conference on December 9, 2008)

Brandes Investment Partners, LP v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/08/3)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Constituted: December 08, 2008

Composition of Tribunal

President: Robert BRINER (Swiss). Arbitrators: Karl-Heinz BÖCKSTIEGEL (German), Brigitte STERN (French)

Pending (Tribunal recently constituted)

ABCI Investments N.V. v. Republic of Tunisia (ICSID Case No. ARB/04/12)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Respondent files a memorial on jurisdiction on December 5, 2008)

Wintershall Aktiengesellschaft v. Argentine Republic (ICSID Case No. ARB/04/14)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListConcluded

Outcome of Proceeding: Award rendered on December 8, 2008.

Malaysian Historical Salvors, SDN, BHD v. Malaysia (ICSID Case No. ARB/05/10)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the ad hoc Committee holds a hearing on annulment at The Hague on December 3, 2008)

Astaldi S.p.A. v. Republic of Honduras (ICSID Case No. ARB/07/32)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Claimant files a rejoiner on jurisdiction on December 5, 2008)

Víctor Pey Casado and President Allende Foundation v. Republic of Chile (ICSID Case No. ARB/98/2)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Respondent files a rejoinder on revision on December 3, 2008)

EDF International S.A., SAUR International S.A. and León Participaciones Argentinas S.A. v. Argentine Republic (ICSID Case No. ARB/03/23)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal issues a procedural order concerning the production of documents on December 4, 2008)

EDF (Services) Limited v. Romania (ICSID Case No. ARB/05/13)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the parties file post-hearing briefs on December 5, 2008)

DaimlerChrysler Services AG v. Argentine Republic (ICSID Case No. ARB/05/1)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal issues a procedural order concerning production of documents on November 6, 2008)

Sociedad Anónima Eduardo Vieira v. Republic of Chile (ICSID Case No. ARB/04/7)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (Sociedad Anónima Eduardo Vieira files a memorial on annulment on September 30, 2008)

CIT Group Inc. v. Argentine Republic (ICSID Case No. ARB/04/9)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal issues a procedural order concerning the production of documents on November 4, 2008)

Tza Yap Shum v. Republic of Peru (ICSID Case No. ARB/07/6)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the parties file post hearing-briefs on November 18, 2008)

Giovanni Alemanni and others v. Argentine Republic (ICSID Case No. ARB/07/8)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal holds a first session in Washington, D.C., on December 5, 2008)

Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan (ICSID Case No. ARB/07/14)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal issues a procedural order concerning the procedural calendar on October 15, 2008)

Trans-Global Petroleum, Inc. v. Hashemite Kingdom of Jordan (ICSID Case No. ARB/07/25)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal issues a procedural order concerning the procedural calendar on November 5, 2008)

Marion Unglaube v. Republic of Costa Rica (ICSID Case No. ARB/08/1)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Claimant files a memorial on the merits on November 5, 2008)

Giordano Alpi and others v. Argentine Republic (ICSID Case No. ARB/08/9)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Constituted: December 05, 2008

Composition of Tribunal:
President: Bruno SIMMA (German), Arbitrators: Karl-Heinz BÖCKSTIEGEL (German), Santiago TORRES BERNÁRDEZ (Spanish)

Pending (Tribunal recently constituted)

Murphy Exploration and Production Company International v. Republic of Ecuador (ICSID Case No. ARB/08/4)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Claimant files a reply on provisional measures on December 1, 2008)

Total S.A. v. Argentine Republic (ICSID Case No. ARB/04/1)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Claimant files observations on the Respondent's request for production of documents on November 21, 2008)

El Paso Energy International Company v. Argentine Republic (ICSID Case No. ARB/03/15)

http://icsid.worldbank.org/ICSID/FrontServlet?requestType=GenCaseDtlsRH&actionVal=ListPending

Pending (the Tribunal issues a decision on the Respondent's request for production of documents on October 2, 2008)

PODCASTS

IDN 53 - So You Want to Be a Great Mediator? Ben Picker Returns

Ben's Back! One of the nation's top law firm ADR practitioners, Bennett G. Picker, of Philadelphia's Stradley Ronon Stevens & Young, returns to talk about what it takes to be a great mediator. The discussion is relevant to managing international disputes, explains host Mike McIlwrath, because it is the same information parties need for choosing a great mediator in the course of their dispute management. Find out the three things you need to know about what makes a great mediator in this week's IDN.

IDN 52 - Becoming Your Own 'Amiable Compositeur': Arb-Med with Mercedes Tarrazon

Mercedes Tarrazon, a veteran arbitrator and mediator in Barcelona, provides a platform for making parties and their attorneys more comfortable with mediation, arbitration, and other hybrid processes that keep people and companies out of litigation. Host Mike McIlwrath interviews Tarrazon about her effective technique for helping parties obtain satisfactory outcomes from their arbitrations--even well before the award stage. Tarrazon explains a practice that she has adapted in a variety of commercial conflict resolution settings around the world.

WEBLOGS

India: Arbitral Proceedings and the Jurisdiction of Courts

http://indiacorplaw.blogspot.com/2008/12/arbitral-proceedings-and-jurisdiction.html

The case of Vijay Kumar Gupta v. Renu Malhotra, recently decided by the Delhi High Court, deals with the important issue of the definition of the word "Court" in the Arbitration and Conciliation Act, as well as the pecuniary jurisdiction of the High Court.

In 1998, the decree-holder filed a petition before the Delhi High Court for appointment of an arbitrator under Section 11 of the Arbitration Act. The petition was valued at Rs. 5 lakh, which was within the pecuniary jurisdiction of the High Court. While the arbitration proceedings were pending, the judgment debtor filed two petitions before the Court under Sections 27 and 37(2)(b) of the Act. During the pendency of the petition under Section 37(2)(b) the arbitrator passed an award in favour of the decree holder. The judgment debtor assailed this award under Section 34 of the Act, in the Delhi High Court. The question was whether the High Court had jurisdiction over the matter.

...

ICSID: Exercise of Inherent Powers in dealing with 'bias'

http://legaldevelopments.blogspot.com/2008/12/icsid-exercise-of-inherent-powers-in.html

An ICSID Tribunal recently considered an interesting - and potentially uncomfortable - issue relating to bias and the inherent powers of an arbitral tribunal.

...

EVENTS

Conference report: Mediterranean Project - Tunis.

http://www.camera-arbitrale.it//news.php?news_id=46&news_tipo=1&anno=2008&lng_id=14

A conference was held on 28 November 2008 in Tunis on "Echange d'expériences sur les principes d'impartialité, indépendance et choix des arbitres". The conference was co-organized by the Centre of Arbitration and Mediation of Tunis and by the Chamber of Arbitration of Milan. Panelists and participants actively discussed problems and perspectives on appointment and independence of the arbitrators, also introducing different approaches and sets of rules. Mr Antonio d'Andria, Italian Ambassador in Tunisi, opened the conference and welcomed lawyers, in-house counsels and arbitrators who attended the event in light of the improving the commercial relationship between Tunisia and Italy.

...

Registration opens for Young Arbitrators Day

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

Lawyers and in-house counsel will have an opportunity to learn more about international commercial arbitration from renowned arbitration experts on 19 January, when the ICC Institute of World Business Law will host a seminar in Paris at ICC headquarters.

...

ASA/DIS Practice Building Seminar - January 23 - 25 2009

http://www.dis-arb.de/aktuell/veranstaltungen.html

The seminar offers a platform for a dialogue on current developments on arbitration from a "common law" and "civil law" perspective. The lively, discussion-based sessions are each led by two experienced arbitration practitioners. The discussion leaders of the forthcoming event are: Mark Baker, Esq.; John Beechey, Esq.; Prof. Dr Karl-Heinz Böckstiegel; Prof. Doug Jones AM; Prof. Dr Siegfried H. Elsing; Mr Toby T. Landau, QC; Mr Laurent Lévy and Dr Markus Wirth

Hotel Römerbad, Badenweiler. Seminar language: English

More information is available at http://www.dis-arb.de/aktuell/veranstaltungen.html

LCIL Friday Lunchtime Lecture: Investor-State Arbitration - Politics, Legitimacy and the New UNCITRAL Arbitration Rules - January 30

http://www.lcil.cam.ac.uk/news/article.php?section=26&article=837

Speaker : Mr Toby Landau QC, Essex Court Chambers
Date: Friday 30th January 2009, 13:00
Time : Lecture starts at 1pm
Venue : Finley Library, Lauterpacht Centre, 5 Cranmer Road, Cambridge

Weighing the Facts: Information Exchange and Presentation of Evidence in International Commercial and Investment Arbitration. May 14 - 15 2009

http://www.utcle.org/conference_overview.php?conferenceid=849

The Conference brings together internationally-renowned faculty from Europe, Asia, Latin America and the United States in a special conference focused on law, ethics, and consensus of information exchange and evidence in arbitration. The program combines analysis and practical application of electronic discovery and evidence in international commercial law and international arbitration. The conference concludes with a discussion by general counsel of ExxonMobil and Freshfields, Bruckhaus Deringer LLP.

Permanent Court of Arbitration, The Hague, The Netherlands

MOVES / JOBS

Economist Michael Salve Joins Alvarez & Marsal Dispute Analysis & Forensic Services

December 15, http://www.alvarezandmarsal.com/en/news/article.aspx?article=6144

Alvarez & Marsal (A&M), one of the leading independent global professional services firms specializing in performance improvement, turnaround management and business advisory services, announced that economist Michael Salve has joined the Dispute Analysis & Forensic Services practice as a managing director. Based in the firm's New York office, Dr. Salve will focus on dispute consulting for the practice, which provides analytical and investigative services to law firms, corporate counsel, corporate boards and management of companies.

...

BOOKS

Cross-Border Internet Disputes Resolution

Julia Hornie
ISBN13: 9780521896207
ISBN: 0521896207
To be Published: March 2009
Publisher: Cambridge University Press
Country of Publication: UK
Binding: Hardback

The internet has the potential to increase the number of cross-border disputes between a wide range of different users. For many internet disputes, the use of Online Dispute Resolution (ODR) becomes critical. ODR uses information technology (such as expert systems) and internet communication applications (such as webforms or web filing platforms) to resolve disputes outside the courts.

Although ODR is a progeny of ADR, using some of the same processes such as mediation and arbitration, ODR is also different in that it adds new and transformative technology and processes. This book sets out the process standards with which ODR, and in particular online arbitration, should comply and shows how these standards can be implemented in the real world. It considers applicable law and enforcement, thus providing a blueprint of how online arbitration processes should be devised.

Contents:

1. Introduction
2. The concepts of fairness
3. Internet disputes
4. ADR and applicable law
5. ODR and access
6. Arbitration and due process
7. Internet disputes and fair arbitration
8. A model of dispute resolution for the internet.

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