issue #01, week 01. 07 January 2009
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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NEWS

Hong Kong International Arbitration Centre Administers First Cases Under New Arbitration Rules [pdf]

January 5, http://www.hkiac.org/HKIAC/pdf/Announcement/090105_AAR.pdf

The Hong Kong International Arbitration Centre (HKIAC) is pleased to announce that it has already received cases filed under its Administered Arbitration Rules ("the Rules"), which were formally launched on 1 September 2008.

The Rules are designed for use by parties who seek the formality and convenience of an administered arbitration. The Rules are the latest addition to the HKIAC's dispute resolution services and replace the previous HKIAC Procedures for the Administration of International Arbitration, adopted on 31 March 2005. The new Rules are based on the UNCITRAL Arbitration Rules and are inspired by the "light touch" administered approach of the Swiss International Rules of Arbitration.

In drafting of the HKIAC Administered Arbitration Rules, references have been made to the arbitration rules of different institutions around the world. Key improvements in the rules include the choice of user-friendly language and the allowance of more party autonomy in individual cases. The Rules are designed especially with Chinese-foreign disputes in mind and are issued in Chinese and English versions.

"The HKIAC Administered Arbitration Rules provide users with an additional option to consider when weighing different dispute solutions", said Dr Michael MOSER, Chairman of the Hong Kong International Arbitration Centre. "The main impetus behind the Rules was a strong demand from parties in mainland China for a `light touch' administered arbitration proceedings in Hong Kong."

Certain administrative functions of the HKIAC have been added to the Rules. Under the Rules, all appointments of arbitrators are subject to confirmation by the HKIAC. The parties can choose whether arbitrators shall be compensated on the basis of agreed rates or in accordance with a fee schedule. If they choose the fee schedule, the arbitrators' fees will be fixed by the HKIAC Council in accordance with the schedule, taking into account the amount in dispute, the complexity of the subject matter, the time spent by the arbitrators and any other relevant circumstances of the case.

"Adoption of the Rules is voluntary. Parties are of course free to conduct ad hoc arbitrations in Hong Kong or under the rules of other arbitral institutions, as in the past. The Rules however do provide for an efficient and cost-effective administered arbitration regime," said Mr. Gary SOO, Secretary-General of HKIAC. "Moreover, the HKIAC Domestic Arbitration Rules continue to remain in effect. The HKIAC has in the past few months carried out promotional efforts in Mainland China and overseas to publicise the Rules to users, arbitrators, lawyers and other dispute resolution practitioners, and the Rules has so far been well-received by all."

Under the Rules, if the parties to an arbitration are of different nationalities, neither the sole arbitrator nor the chairman of a three-member arbitral tribunal shall have the same nationality as any party unless specifically agreed otherwise by all parties in writing. The arbitral tribunal is given a broad discretion as to how to conduct the proceedings. The arbitral tribunal shall have the power to allow, upon the application of a party, one or more third persons to be joined in the arbitration as a party, provided that such third person or persons and the applicant party have consented to such joinder in writing. If there is no majority, the award shall be made by the presiding arbitrator alone. The Rules provide that the arbitral tribunal is to prepare a provisional timetable for the proceedings at an early stage.

The promulgation of the new Administered Arbitration Rules is an important milestone in the work of the HKIAC. The electronic version of the Rules is available on our website www.hkiac.org and copies of the Rules can be obtained from the HKIAC Secretariat.

HKIAC Successfully Mediates First Lehman Brothers-Related Investment Products Case [pdf]

December 22 2008, http://www.hkiac.org/HKIAC/pdf/Announcement/081222_Lehman_E.pdf

The Hong Kong International Arbitration Centre ("HKIAC") announced today that the first mediation of a dispute involving a Lehman Brothers-related investment product was successfully concluded. The mediation took place on 10 December 2008 and lasted for five hours. The mediation ended with the signing of a settlement agreement between the investor and the bank.

Dr. Michael MOSER, Chairman of the HKIAC, said: "We are very pleased to see that the HKIAC's new `med-arb' scheme, introduced just over a month ago, is already up and running and producing results. This is a good start which, hopefully, will persuade others of the benefits of the scheme."

On 31 October 2008, the HKIAC launched a special dispute settlement scheme to deal with Lehman Brothers-related investment products. The scheme provides for voluntary mediation and arbitration proceedings by experts recommended or appointed by the HKIAC. It was designed with the support of the Hong Kong Monetary Authority ("HKMA") to provide an economical and efficient means for resolving disputes between investors and banks that sold investment products backed by the failed US investment house.

As of 17 December 2008, a total of 63 cases have come to the HKIAC for settlement under the scheme based on referrals made by the HKMA to the Securities and Futures Commission ("SFC"). A number of the cases were subsequently settled by direct negotiation between the parties prior to the commencement of mediation proceedings. Apart from cases referred by the HKMA and the SFC following complaints by investors, the HKIAC itself receives cases directly.

"We are glad to have the first dispute settled by means of mediation successfully and efficiently. Investors and banks welcome the introduction of the mediation and arbitration services for settling finance-related disputes. We also see their sincerity to settle the disputes as soon as it can." said Mr. Gary SOO, Secretary-General of the Hong

SunOpta Announces Decision On Abener Arbitration

December 23, http://ca.biz.yahoo.com/pz/081223/156785.html

...

The ruling of the arbitrator partially allowed Abener's claim and ordered payment be made to Abener in the amount of the EUR 1,329,898. The arbitrator's decision resolves certain disputes related to the interpretation of contractual business terms and does not reflect on the effectiveness of the Company's products and technologies nor the value of its intellectual property. The Company is reviewing and assessing the English translation of the lengthy ruling and consulting with its counsel to review its options and determine what steps, if any, should be taken in response to the decision. The Company's claim for damages against Abengoa BioEnergy New Technologies, Inc., a related party to Abener, continues in arbitration and a decision at this time is expected in mid 2009.

...

Barclays seeks arbitration on Sanghi dues

December 30, http://www.livemint.com/2008/12/30235532/Barclays-seeks-arbitration-on.html

In the latest case of derivative bets gone sour, Barclays Bank Plc. has dragged Hyderabad-based cement maker Sanghi Industries Ltd to the London Court of International Arbitration for alleged non-payment of Rs179 crore following losses from transactions executed between January and April, executives from both firms said.

...

Creston Moly to appeal $4.14-million arbitration

December 29, http://www.stockwatch.com/swnet/newsit/newsit_newsit.aspx?bid=Z-C:CMS-1563726&symbol=CMS&news_region=C

Creston Moly Corp. has received the decision of the arbitrator with respect to a dispute, as to the finder's fee, as approved by the TSX Venture Exchange, payable in respect of the company's acquisition of Creston Mining Corp. in May of 2007. The arbitrator has found in favour of the finder and has awarded the amount of $4.14-million. The company intends to appeal the award.

...

Supreme Court of Peru restores the Arbitration Award in Sulliden's favour

December 31, http://www.globeinvestor.com/servlet/story/CNW.20081231.C4795/GIStory/

Sulliden Exploration Inc. is very pleased to report that the Supreme Court of Peru has ruled in Sulliden's favour on the key appeal filed by Sulliden, and heard by the Supreme Court of Peru on November 13, 2008, in the legal dispute relating to Sulliden's ownership of the Shahuindo gold/silver property in Peru (See Sulliden's press releases dated October 24, 2008, November 14, 2008 and December 2, 2008).

The Supreme Court of Peru has accepted and allowed the appeal taken by Sulliden against the Decision of the Commercial Chamber of the Superior Court of Lima datedAugust 9, 2007, granting Algamarca's Nullity Petition against the Arbitration Decision of July 2006, which had declared that Sulliden had fully met the terms and obligations of the Transfer Contract dated November 6, 2002 and had properly acquired the Shahuindo property.

...

Ambrilia Biopharma Submits a Request for Arbitration Against Merck

December 30, http://cnrp.ccnmatthews.com/client/ambrilia_biopharma/releaseen.jsp?year=2008&actionFor=934017

Ambrilia Biopharma Inc. announced today that it has submitted a Request for Arbitration with the International Chamber of Commerce (ICC) to resolve disputes, controversies and claims related to a November 14, 2003 Confidentiality Agreement and an October 12, 2006 Exclusive License Agreement between Ambrilia and Merck & Co., Inc. and Merck Sharpe & Dohme Research Ltd (collectively, "Merck") respectively and certain Ambrilia patent and other rights. Following many attempts at resolution with Merck, Ambrilia came to the conclusion that seeking arbitration was the most efficient way to reach a prompt resolution to the situation.

"Our team at Ambrilia has worked hard and been successful in building a strong HIV protease inhibitor program with corresponding intellectual property, and thus creating a solid foundation on which to further build through a collaboration," said Dr. Philippe Calais, President and CEO of Ambrilia. "Based on recent events, however, Ambrilia believes Merck has not met its obligations. Ambrilia not only continues to believe in the potential of PPL-100 and its related compounds to offer advantages to HIV patients over the currently commercialized protease inhibitors, but also believes its positions respecting the partnership will prevail in arbitration."

...

RosUkrEnergo puts in claim against Naftogas

January 3, http://www.focus-fen.net/index.php?id=n165577

RosUkrEnergo has filed claim against Naftogaz Ukraine at the ICC International Court of Arbitration in Stockholm, RIA Novosti reports. RosUkrEnergo insists for Naftogaz to pay off its due debts for natural gas deliveries, estimated at USD 614 million, and to guarantee the transit of Russian natural gas to the European consumers according to the terms and conditions set in the valid contracts. Naftogaz, on the other hand, declared it has covered all its debt to RosUkrEnergo for Russian natural gas in 2008. In an official statement Naftogaz states that in 2008 Ukraine received a total of 47,964 million cubic meters of gas and paid USD 8.609 billion to RosUkrEnergo.

Gazprom to sue Naftogaz Ukrainy with international arbitration court

http://www.gazprom.com/eng/news/2009/01/33506.shtml

Gazprom has taken the decision to file a lawsuit with the Stockholm international arbitration court to force Naftogaz Ukrainy to secure unimpeded transit of Russian gas to Europe across Ukraine.

The lawsuit will be filed in accordance with the Contract of June 21, 2002 on the volumes and terms of Russian natural gas transit across Ukraine to European consumers over 2003-2013.

As part of this lawsuit Gazprom will ask the court to adopt in the shortest possible time provisional measures prohibiting Naftogaz Ukrainy to take any actions aimed at reducing the Russian gas transit to Europe.

I have notified Russian President Dmitry Medvedev about the planned legal action and he has approved this decision.

All the necessary documents will be prepared and sent to Stockholm in the nearest future," OAO Gazprom Management Committee Chairman Alexey Miller told reporters

Arbitration over delays in nuclear build

January 05, http://www.world-nuclear-news.org/newsarticle.aspx?id=24227

The row over delays at the Olkiluoto 3 new-build project has grown more serious after constructing consortium Areva-Siemens took their customer Teollisuuden Voima Oyj (TVO) to arbitration.

...

RCBC wins Bankard case

December 28, http://businessmirror.com.ph/index.php?option=com_content&view=article&id=3868:rcbc-wins-bankard-case-&catid=25:bankingandfinance&Itemid=61

THE Supreme Court has upheld a lower court ruling which confirmed the partial award rendered by the International Chamber of Commerce International Court of Arbitration (ICC-ICA) in favor of the Rizal Commercial Banking Corp. Capital Corp. (RCBC) in connection with its dispute with Equitable-PCI Bank (EPCIB) over the latter's alleged overpriced sale of Bankard Inc.

...

Ecuador to Pay U.S. Machala Power $70 Million to Avoid Arbitration

http://www.laht.com/article.asp?ArticleId=324193&CategoryId=14089

The Ecuadorian government plans to pay some $70 million to Machala Power, a subsidiary of U.S.-based Noble Energy, to avoid an arbitration process before the World Bank's International Center for Settlement of Investment Disputes.

Energy Minister Alecksey Mosquera, in statements cited Friday by the daily El Telegrafo, said the payment to Machala Power is the result of an accord signed recently between that firm and the National Electricity Council.

...

Danone Takes Battle of 'Laughing Child' to Sweden

January 6, http://www.bloomberg.com/apps/news?pid=20601080&sid=aXmI3xF8lF6Y&refer=asia

Groupe Danone SA, the world's biggest yogurt maker, and Chinese partner Hangzhou Wahaha Group Co. began a hearing this week in Stockholm to decide who owns the $2.4 billion brand Wahaha, which means "Laughing Child."

...

Dow to Seek Damages From Kuwait for Breaking Deal

January 6, http://www.bloomberg.com/apps/news?pid=20601087&sid=ai98ctSFo3Dg&refer=home

Dow Chemical Co., the largest U.S. chemical maker, plans to seek more than $2.5 billion from Kuwait for canceling a joint venture agreement and will consider a new partner to invest in its basic-plastics business.

Two other parties have approached Dow about acquiring an interest in the unit, the world's largest maker of polyethylene plastic, Chief Executive Officer Andrew Liveris said today in an interview from company headquarters in Midland, Michigan. Liveris said he expects at least six potential partners to bid, and a new deal should be announced this year.

...

See also http://news.dow.com/dow_news/corporate/2008/20081228a.htm

ICDR, Bahrain to Launch Arbitration and Mediation Center

http://www.adr.org/sp.asp?id=35466

The International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association, and Bahrain's Ministry of Justice and Islamic Affairs will open an arbitration and mediation center in the Persian Gulf state in October 2009.

The new center, called the Bahrain Chamber for Dispute Resolution-AAA (BCDR), will administer the arbitration and mediation of domestic and regional commercial cases, including insurance, construction, financial services and energy disputes. It will develop its own rules based on the ICDR's International Dispute Resolution Procedures. Arbitrations and mediations will be conducted in Arabic, English, or any other language required by parties.

There will be a separate ICDR office in Bahrain, working side-by-side with the BCDR, said Mark Appel, AAA/ICDR senior vice president. "Think of it as a multi-door centre, where a common front desk gives way to two offices, one for domestic/regional matters [BCDR] and the other for international commerce [ICDR]," he said.

The Kingdom of Bahrain, an island nation in the Persian Gulf, is home to numerous multinational firms doing business in the region. The City of London's Global Financial Centres Index, which ranks world financial centers, named Bahrain the world's fastest growing financial center in 2008.

In 1994, Bahrain enacted legislation based on the UNCITRAL Model Law on International Commercial Arbitration, which is meant to help nations modernize their arbitration laws.

"The AAA/ICDR has a proud history of collaboration with others to improve ADR processes and systems globally. We are particularly excited about bringing AAA/ICDR experience and expertise to the Gulf, an area of enormous global importance. This opportunity in Bahrain is raising the level of global ADR institution building," said Appel.

The ICDR signed an understanding with Bahrain's Ministry of Justice on Dec. 2. Under the agreement, the ICDR will provide technical and administrative advice to the ministry and offer training to local arbitrators, mediators, lawyers and judges, as well as help promote ADR use in Bahrain's business community.

The ICDR is responsible for administering all international cases filed with the AAA. It has multilingual staff and numerous cooperative agreements with arbitral institutions around the world to help ensure that disputes are administered in an efficient, cost-effective, and culturally sensitive manner. Both the AAA and the ICDR are based in New York City. The ICDR also has offices in Dublin, Ireland, Mexico City and Singapore.

See also ... Justice for all - A NEW arbitration centre in Bahrain could help modernise justice systems across the Gulf, December 30, http://www.gulf-daily-news.com/Story.asp?Article=238890&Sn=BNEW&IssueID=31285

A NEW arbitration centre in Bahrain could help modernise justice systems across the Gulf - helping millions of people in the process. The GDN reported last week that the Bahrain Chamber for Dispute Resolution - AAA was on the cards following the signing of a Memorandum of Understanding between the Justice Ministry and the American Arbitration Association (AAA).

Both domestic and regional disputes will be settled in Bahrain once the landmark centre opens, providing public and private arbitration and mediation services under the guidance of the AAA's international division: the International Centre for Dispute Resolution (ICDR).

"The AAA-ICDR is honoured to assist the Kingdom of Bahrain in its efforts to use arbitration and mediation to further enhance and modernise the justice system in Bahrain and the Gulf," said ICDR senior vice-president-Europe, Middle East and Africa Mark Appel.

...

Additions to 'Rules of the DIFC Courts' Posted for Public Consultation

December 23 2008, http://www.difc.ae/press_centre/archive/2008/588.html

The Dubai International Financial Centre (DIFC) Courts announced today that it has posted new additions to the "Rules of the DIFC Courts" for public consultation.

The additions to the Rules include Part 43, focused on Arbitration, and Part 53, focused on the Small Claims Tribunal (SCT), both created in accordance with Article 31 of the DIFC Law No. 10 of 2004 (Court Law). Both new Parts have been posted on the DIFC Courts website, www.difccourts.ae, for a 30-day public consultation period, from 19 December 2008 to 18 January, 2009. The public are invited to comment on the additions to the Rules during this period.

Part 43 of the Rules sets out the procedures relating to claims arising from Arbitrations conducted in the DIFC LCIA Arbitration Centre. This will involve the general powers of a supervisory Court, including interim applications as well as enforcement and ratification of arbitration awards. Part 53 of the Rules deals with the process of opening claims, in the unique fast-track Small Claims Tribunal, created for claims involving amounts of up to AED 100, 000.

Sir Anthony Evans, Chief Justice of the DIFC Courts said: "The Rules of the DIFC Courts are intended to incorporate global best practices. The new additions reflect the formation of the DIFC/LCIA Arbitration Centre and of the Small Claims Tribunal which already represents an important part of the jurisdiction of the DIFC Courts. The Rules will constantly evolve according to needs of companies in the financial district and as part of our efforts to create the most independent, fair, transparent and efficient judicial system possible."

The "Rules of the DIFC Courts" provide procedural rules for claims brought up before the Small Claims Tribunal, the Court of First Instance and the Court of Appeal. They were created following extensive consultation and review of international best practices and are modelled on English Civil Procedure Rules (CPR) and the English Admiralty and Commercial Court Guide, 6th Edition.

The DIFC Courts guarantee the highest standards of legal procedure and the certainty, flexibility and efficiency expected by global institutions. Headed by eminent judges who have varied and extensive experience in different common and civil law jurisdictions around the world, the DIFC Courts have been designed to exercise a wide civil and commercial jurisdiction including complex cases arising out of sophisticated financial transactions.

Comments on the additions to the Rules of the DIFC Courts can be sent to

Proceedings instituted by the Federal Republic of Germany against the Italian Republic (Germany v. Italy) [pdf]

December 23, http://www.icj-cij.org/docket/files/143/14925.pdf

THE HAGUE, 23 December 2008. The Federal Republic of Germany today instituted proceedings before the International Court of Justice (ICJ) against the Italian Republic, alleging that "[t]hrough its judicial practice . . . Italy has infringed and continues to infringe its obligations towards Germany under international law".

In its Application, Germany contends: "In recent years, Italian judicial bodies have repeatedly disregarded the jurisdictional immunity of Germany as a sovereign State. The critical stage of that development was reached by the judgment of the Corte di Cassazione of 11 March 2004 in the Ferrini case, where [that court] declared that Italy held jurisdiction with regard to a claim . . . brought by a person who during World War II had been deported to Germany to perform forced labour in the armaments industry. After this judgment had been rendered, numerous other proceedings were instituted against Germany before Italian courts by persons who had also suffered injury as a consequence of the armed conflict." The Ferrini judgment having been recently confirmed "in a series of decisions delivered on 29 May 2008 and in a further judgment of 21 October 2008", Germany "is concerned that hundreds of additional cases may be brought against it".

The Applicant recalls that enforcement measures have already been taken against German assets in Italy: a "judicial mortgage" on Villa Vigoni, the German-Italian centre of cultural exchange, has been recorded in the land register. In addition to the claims brought against it by Italian nationals, Germany also cites "attempts by Greek nationals to enforce in Italy a judgment obtained in Greece on account of a . . . massacre committed by German military units during their withdrawal in 1944".

...

Land disputes headed for arbitration under China draft law

December 22, http://english.people.com.cn/90001/90776/90785/6559824.html

China will pass legislation dealing with land contract management disputes, which have become frequent in recent years and "a factor affecting rural harmony and stability," said a draft law submitted to the top legislature on Monday.

The "Arbitration Law on Land Contract Management Disputes" was tabled for a first reading with the Standing Committee of the 11thNational People's Congress (NPC), the top legislature, which opened its six-day bi-monthly session on Monday.

...

Soaring demand for arbitration

December 19, http://www.lawgazette.co.uk/news/arbitration-soars

Demand for arbitration has soared this year, figures from the London Court of International Arbitration reveal.

The court has heard 198 cases to date - 66% more than the average over the previous four years. Amanda Wadey, solicitor in the dispute resolution practice at LexisNexis, said that an increase in personal finance disputes is the main driver behind this year's increase, and that 'big ticket' mediations had not yet hit the lists.

...

Pakistan: Foreign investors may get legal cover

December 20, http://www.thenews.com.pk/print1.asp?id=152737

"We are in talks with investors from Gulf states, particularly Saudi Arabia, for investment in corporate farming. Investors will be ensured repatriation of 100 per cent crop yield to their countries even in case Pakistan faces food deficit," Federal Investment Minister Waqar Ahmad Khan unveiled this while painting future investment landscape of the country.

To ensure maximum investment in the country, the government is also planning to extend life insurance facility to foreign investors in the wake of law and order situation that has worsened because of suicide attacks and militants' other activities.

...

Carlyle Seeks USD 200 Million from Prominent Chinese Venture Capitalist

December 10, http://www.chinastakes.com/story.aspx?id=897

Carlyle Group is suing the founding managing partner of the Sequoia Capital China Growth Fund Neil Shen on the grounds that he unlawfully prevented it from buying into a Chinese medical research company founded by Shen's former classmate, Ren Jun. If convicted, Shen may face penalties of over US$200 million for choosing "guanxi" over legal governance.

...

Fortescue goes to London arbitration

December 22, http://www.lloydslist.com/ll/news/viewArticle.htm?articleId=1229680512777

FORTESCUE Metals Group has entered arbitration in London and has less than $1.5m frozen in the US over its suspension of shipping contracts, the iron ore miner revealed today, reports Lloyd's List DCN.

Fortescue maintained that it had a legitimate legal entitlement to suspend the contracts.

...

see also http://www.bloomberg.com/apps/news?pid=20601081&sid=aHhGYhVF_Nzc&refer=australia

University of Miami School of Law Adds Jan Paulsson

December 18, http://www.businessleader.com/index.aspx?page=ui.readstories&id=20474

The University of Miami School of Law today announced the appointment of Jan Paulsson to the Michael Klein Distinguished Scholar Chair beginning in the academic year 2009-10. Paulsson is head of the public international law and international arbitration groups at Freshfields Bruckhaus Deringer, and has had his professional base in Paris for 30 years. He is currently also the president of both the London Court of International Arbitration and the World Bank Administrative Tribunal.

In his post, Paulsson will head a newly established institute for international arbitration at the University of Miami School of Law, that will include an enhanced international curriculum, LL.M. specializations, training, and CLE programs.

...

Argentina renationalises airline

December 18, http://news.bbc.co.uk/1/hi/business/7789371.stm

Argentina is set finally to renationalise the Spanish-owned airline, Aerolineas Argentinas (AA).

AA and its Austral subsidiary have been under state control since November when a court gave the government management control in order to secure services.

...

See also TDM News Digest, issue #30.

Alpine and Porr to seek Serbian settlement

December 17, http://www.khl.com/magazines/construction-europe/detail/item30118/Alpine-and-Porr-to-seek-Serbian-settlement/

A consortium including Austrian contractors Alpine Bau and Porr has pulled-out of Hergos-Pozega motorway in Serbia, having been awarded the € 1,5 billion concession last year. The group says it has been unable to reach agreement with the Serbian government following proposed changes to the contract in the summer.

The government and consortium will now go into a mediation process to settle the dispute. If this is not resolved after 60 days they will refer the matter to the International Chamber of Commerce (ICC) for arbitration.

...

Pakistan: ADR - expedient and discrete resolution of disputes

December 16, http://www.dailytimes.com.pk/default.asp?page=2008%5C12%5C16%5Cstory_16-12-2008_pg7_41

Legal experts have said that for the speedy resolution of civil matters and to ensure privacy between parties, the method of Alternative Dispute Resolution (ADR) should be introduced in the country.

...

Gamuda, MMC bring arbitration against sub-contractor

December 18, http://www.theedgedaily.com/cms/content.jsp?id=com.tms.cms.article.Article_48211557-cb73c03a-53897400-edfdc965

Gamuda Bhd and MMC Corp Bhd, via their joint venture, have brought an arbitration proceeding against their previous sub-contractor for the Stormwater Management and Road Tunnel (SMART) project.

In a separate statement yesterday, Gamuda and MMC said the arbitration was in respect of a Dispute Adjudication Board's (DAB) decision that the JV pay Wayss & Freytag RM102.37 million in various claims submitted.

...

Victory for the Republic of Peru in Energy Dispute at World Bank

December 17, http://www.whitecase.com/press_12172008/

Washington, DC, December 17, 2008 ... An international arbitration tribunal ruled unanimously in favor of the Republic of Peru in a US$150 million energy dispute arising under a legal stability agreement before the International Centre for Settlement of Investment Disputes (ICSID) in Washington, DC. Global law firm White & Case LLP represented Peru.

The dispute centered on a claim by Aguaytia Energy, LLC, a US company, regarding an investment it made in an integrated energy project in Peru that involved natural gas extraction and electricity generation and transmission pursuant to certain government concessions.

A decade later, Aguaytia commenced ICSID arbitration against Peru, seeking initial damages of US$140 million but ultimately as high as US$150 million. Aguaytia alleged discriminatory treatment by Peru regarding the company's electricity transmission concession vis-à-vis an unrelated Build-Own-Operate-Transfer (BOOT) contract granted by Peru some years later to a different foreign investor pursuant to an international public bid.

Aguaytia premised its claim on a 1996 Legal Stability Agreement between Aguaytia and a Peruvian state agency. The agreement provided for the stability of certain laws relating to, among others, taxation, free remittance of profits, exchange rates and the right to nondiscrimination. Aguaytia argued that the stability of the right to nondiscrimination constituted a substantive right against nondiscrimination. The tribunal disagreed.

Partner Jonathan C. Hamilton, who led White & Case's defense of the Republic of Peru, said: "The award is a complete victory for Peru and makes an important contribution to the understanding of stability agreements as a tool for the promotion and protection of foreign investment."

In its award, the tribunal agreed with Peru that the stability agreement stabilized specified laws by freezing them with respect to the signatory investor for a period of 10 years - an important benefit to investors. The tribunal concluded that a guarantee of the "stability of the right to non-discrimination" did not constitute a substantive right against nondiscrimination or a promise of "most favored investor" treatment. The tribunal made no finding of discrimination by Peru.

Added Hamilton: "The case also shows that under the right circumstances, investment arbitration cases can proceed expeditiously. The parties completed all pleadings and hearings in 14 months, and the tribunal issued the award in favor of Peru less than five months later."

White & Case fielded a bilingual team that included, in addition to Hamilton, partners Carolyn B. Lamm, Abby Cohen Smutny and Francis A. Vasquez, Jr. Estudio Echecopar in Lima acted as co-counsel.

The case is Aguaytia Energy, LLC v. Republic of Peru (ICSID Case No. ARB/06/13). It was decided by a three-member tribunal that included Robert Briner of Switzerland (president), J. William Rowley of Canada and Claus von Wobeser of Mexico.

White & Case is a leader in Latin American arbitration and investment disputes. Its global Arbitration Practice successfully advised a decade ago on the first ICSID case registered against a Latin American state and, over the past year, has won disputes before ICSID related to Bulgaria, Peru, the Philippines and Turkey. The practice has arbitration centers in Hong Kong, London, New York, Paris, Stockholm and Washington, DC, with significant practices in Brussels, Mexico City, Miami, Moscow, Prague and Tokyo. The group was named "International Arbitration Team of the Year" at the Chambers USA Awards 2007 and has been ranked at the top of its field by Chambers USA, Chambers Global, Global Arbitration Review, Legal 500, American Lawyer, International Who's Who of Commercial Arbitration and Benchmark: The Definitive Guide to America's Leading Lawyers.

Entel arbitration postponed by ICSID until 2010

December 18, http://www.telegeography.com/cu/article.php?article_id=26568

According to BNamericas, the World Bank's International Centre for the Settlement of Investment Disputes (ICSID) has postponed the arbitration process relating to the renationalisation of Bolivian telco Entel until 2010.

...

Telecom Italia's Bolivian arbitration deferred

December 16, http://www.reuters.com/article/marketsNews/idUSN1640131820081216

The arbitration case filed by Telecom Italia against Bolivia over the nationalization of its former subsidiary Entel has been put on hold after a preliminary hearing in Holland, the nationalizations minister said on Tuesday.

...

See also http://in.reuters.com/article/rbssTechMediaTelecomNews/idINLH17698920081217

CEDR: New arrangement in Sweden to make mediator skills training available from 2009

http://www.cedr.com/index.php?location=/news/archive/20081212_315.htm

In a new move for CEDR, it has made an exclusive agreement with the West Sweden Chamber of Commerce and Industry, based in Gothenburg. This contract gives the Chamber exclusive rights to promote CEDR's Mediator Skills Training in Sweden.

...

Will Supreme Court of Canada Hear High-Profile International Arbitration Case? [pdf]

December 2, http://www.torys.com/Publications/Documents/Publication%20PDFs/AR2008-74.pdf

By James Redmond & Barry Leon: The pending Supreme Court of Canada leave to appeal application in Yugraneft v. Rexx Management is, in our view, not only of national importance but of international importance. It goes to the heart of the benefits of international commercial arbitration: the ability to enforce an international arbitration award relatively easily in most countries around the world.

Canadians should be aware of just how significant this case is to international business and should hope that our Supreme Court takes on the case and that it articulates that limitation periods cannot be imposed on applications to recognize and enforce international arbitral awards - not in Canada nor elsewhere.

More than 140 countries, including Canada, are signatories to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, more commonly known as the "New York Convention." This year marks its 50th anniversary.

...

See also "Global Arbitrators Turn Eyes to Supremes", November 26, http://www.theglobeandmail.com/servlet/story/LAC.20081126.LAWMAIN26/TPStory/Business as noted in TDM News Digest issue #31

PODCASTS

IDN 55 - Neanderthal v. Cro-Magnon Dispute Resolution: Ian Tattersall on Becoming Human

Our need to develop fairness and justice runs deep. How deep? About 40,000 human developmental years' deep. In this week's podcast, Ian Tattersall, curator in the Department of Anthropology at New York's American Museum of Natural History, and an expert in interpreting human paleontology to the public, discusses how Cro-Magnon creativity and culture produced the beginnings of modern dispute resolution.

IDN 54 - Arbitrating Dangerously: The AAA's Eric Tuchman on Tribunal Immunity

Arbitrators are sued for anything and everything, according to first-time International Dispute Negotiation guest Eric P. Tuchmann, the American Arbitration Association's general counsel in New York. Join Tuchmann and IDN host Mike McIlwrath for a discussion on liability claims against arbitration tribunals and providers. The analysis begins with a New Jersey parking lot brawl between an arbitration attorney-advocate, and an opposing party--a case that had the AAA defending its actions in a state appellate court.

EVENTS

Report: Arab arbitration meeting kicks off in Jordan

December 20, http://news.xinhuanet.com/english/2008-12/20/content_10529331.htm

Over 150 participants from 15 Arab states gathered in Jordan on Friday and kicked off the 6th congress of the Arab Union for International Arbitration (AUIA).

The three-day meeting seeks to address the modern trends in settling commercial disputes and investment in the Arab world. It will also review obstacles facing investment in Jordan as well as in the Arab world and find solutions through arbitration to settle disputes away from courts.

...

Report: The Resolution of the International Business disputes - Focus on the Italian-Brazilian relations

http://www.camera-arbitrale.it//news.php?news_id=47&news_tipo=1&anno=2008&lng_id=14

A confrontation between experts of this sector has been the opportunity to gather useful indications and best practices on how to manage international commercial disputes: this was the double purpose of the meeting organized by the Chamber of Arbitration of Milan last December 15th, at Palazzo Affari ai Giureconsulti, in Milan. The idea of focusing the attention on relations between Italy and Brazil has given the speakers the opportunity to express very concrete considerations, definitely useful and practical.

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ICC Mediation competition sets new record

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

ICC's Dispute Resolution Services has selected a record number of universities to face off in the 4th ICC International Commercial Mediation Competition in Paris on 7-12 February 2009.

Teams from 40 universities in 19 countries will hone their skills in a challenging series of mediation rounds. The teams hail from academic institutions in the US, UK, Belarus, China, Ukraine, Thailand, Poland, India, Brazil, Turkey, Germany, France Singapore, Sweden, Ireland, Switzerland and Canada. Last year, 30 teams competed from legal institutions in 16 countries.

...

CEDR Breakfast Briefing - Breakthrough Conversations - how to nudge the parties towards better results in negotiation and mediation - 28 January 2009

http://www.cedr.com/training/flyer.php?param=217

January's Breakfast Briefing will spearhead a new year of informative and topical events, held by CEDR. The Breakfast Briefings are designed for you to start your working day as part of a key audience listening to expert speakers on important and current issues.

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AAA and ICDR to Hold Joint Neutrals' Conference - Feb. 27-28, 2009

http://www.adr.org/sp.asp?id=35432

The American Arbitration Association and its international division, the International Centre for Dispute Resolution (ICDR), are holding a Neutrals Conference on Feb. 27-28, 2009.

The AAA and ICDR Neutrals Conference, to be held in Coronado, California, marks the first time that the Association is expanding its annual neutrals' conference to include members of both the AAA and ICDR rosters.

...

ASA/DIS Practice Building Seminar

January 23 - 25 2009. Hotel Römerbad, Badenweiler. Seminar language: English

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

ICC: 4th International Commercial Mediation Competition

February 07 - 12 2009. Paris, France

The fourth edition of the competition will take place in Paris on 7-12 February 2009. With a view towards training lawyers to better meet the dispute resolution needs of today's cross-cultural market, the competition gives students an opportunity to test their problem- solving skills in a moot international mediation.

2009 Research Colloquium - Current Research on International Economic Law

February 13, 2009. UCLA School of Law, Los Angeles, California

Sponsored by the ASIL International Economic Law Interest group, this research colloquium will present the best of current scholarship and research in international economic law. The goal of this non-thematic research colloquium is to promote and facilitate discussion of works in progress relating to any area and issue of International Economic Law.

Belgrade Arbitration Conference [pdf]

March 27 2009. Belgrade, Serbia

Part I: Foundations: arbitration agreement and arbitrability. Part II: Selected procedural issues. Part III: Arbitration perspectives. Speakers include: Prof. Jack Graves, Prof. Ronald Brand, Dr. Michael Mraz, Dr. Stavros Brekoulakis, Dr. Christian Dorda, Prof. Tibor Varady, Maria Theresa Trofaier, Karl Peter Puszkajler, Prof. Vesna Lazi, Per Runeland, Dr. Georgios Petrochilos, Dr. Gerold Zeiler, Dr. Fabian von Schlabrendorff, Prof. Eric Bergsten.

Fifth Annual Leading Arbitrators' Symposium on the Conduct of International Arbitration

6 April 2009. Grand Hotel Wien, Vienna

Leading international arbitrators and practitioners from North America and Europe will discuss, in Socratic form, four topics of importance to lawyers, arbitrators and businessmen who are involved in the resolution of international commercial disputes through arbitration. - Pre-hearing activities; - Hearing and post-hearing activities; - Ethics; and Expectations and disappointments in arbitration.

Third Annual Investment Treaty Arbitration Conference: A Debate And Discussion - Interpretation In Investment Arbitration

30 April 2009. Renaissance Mayflower Hotel. Washington, D.C.

Investment treaty arbitration remains one of the most dynamic and growing areas of international arbitration. The third annual conference continues the tradition of focusing on four of the most pressing issues before counsel - by establishing a dialogue between some of the brightest new stars in the field and some of its most seasoned practitioners. Eight up-and-comers are preparing papers on four of the most controversial and important issues in international investment law today. On April 30th our young authors will pair up to defend their positions before a panel of arbitrators and arbitration specialists.

Resolving Business Disputes in Today's China

11 May 2009. Harvard Club of New York City. New York City

China has become a magnet for international business. At the same time, the "China boom" has also produced a dramatic increase in the number and complexity of business disputes. Knowing how to effectively manage business disputes is an important component of every successful China business strategy. This one day conference by the world's leading China disputes experts provides you with an overview of current dispute settlement techniques and tools.

Weighing the Facts: Information Exchange and Presentation of Evidence in International Commercial and Investment Arbitration.

May 14 - 15 2009, Permanent Court of Arbitration, The Hague.

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.

The 14th Geneva Global Arbitration Forum - May 26 & 27 2009

The 14th Geneva Global Arbitration Forum

"Settling Disputes on a Shrinking Planet"
Geneva, Switzerland
Tuesday May 26 and Wednesday May 27, 2009

Please visit our website www.ggaf.ch

Programme Tuesday, May 26, 2009

18:00 - 20:00
Cocktail reception at the Four Seasons Hotel des Bergues

Programme Wednesday, May 27, 2009

09:00 Panel 1:

Honouring the Legacy of Thomas Wälde:

In a time of political and financial crisis, is there some room for adjusting the Force Majeure concept?

10:30 Coffee

11:00 Panel 2:

Current issues in damages evaluation:
- Is there any place for punitive damages in arbitral awards?
- Should interest be considered as damages?

12:30 Lunch

14:00 Panel 3:

How to make the arbitral awards in investment disputes acceptable to the Host States:
- any lesson to be drawn from the WTO dispute settlement system?
- Is there a democratic deficit to be remedied in the investment dispute system?

15:30 Coffee

16:00 Panel 4:

A new era with the Obama Administration:
- What prospects exist for reforming the dispute settlement system of the WTO - professional panelists, retroactive remedies, monetary compensation?

The Conference will end at 17:30

Speakers will include Charles C. Adams, Hogan & Hartson, Geneva; Christoph Brunner, Python & Peter, Berne; Melaku Desta, Centre for Energy, Petroleum and Mineral Law and Policy (CEPMLP), Dundee; John Y. Gotanda, Villanova University, Pennsylvania; Gary Horlick, Wilmer Cutler Pickering Hale & Dorr, Washington D.C.; Pierre Lalive, Lalive, Geneva; Serge Lazareff, Chairman, ICC Institute of World Business Law, Paris; Petros Mavroidis, University of Neuchâtel and Columbia University; Federico Ortino; King's College, London; Philippe Preti, Baker & McKenzie, Geneva; Pierre Tercier, University of Fribourg; Jacques Werner, Werner & Associés, Genève; Roland Ziade, Cleary Gottlieb Steen & Hamilton, Paris. And more to come.

Jacques Werner will be the Chairman of the Conference.

The Forum is sponsored by:
- The Journal of World Investment & Trade
- The Geneva Post Quarterly
- OGEL - TDM

BOOKS

The American Influences on International Commercial Arbitration: Doctrinal Developments and Discovery Methods

Pedro Martinez-Fraga
ISBN13: 9780521765886
ISBN: 0521765889
To be Published: June 2009
Publisher: Cambridge University Press
Country of Publication: UK
Binding: Hardback
Price: £75.00

This text traces the contours of U.S. doctrinal developments concerning international commercial arbitration. It explores international commercial arbitration as a bridge that creates symmetry between what the author perceives as an anomaly arising from the disparities between the monolithic framework arising from economic globalization and a fragmented global judicial counterpart. Specifically, American common law discovery precepts are analyzed through the prism of the fundamental precepts of party-autonomy, predictability, uniformity, and transparency of spender, which the author contends to be the rudimentary tenets of both the American common law procedural rubric and the very principles that international commercial arbitration seeks not only to preserve but to enhance. Therefore, as the author asserts, the discovery process endemic to American common law comports more closely with international commercial arbitration both procedurally and theoretically than with those of the 'taking of evidence' methodology commonly used in international commercial arbitrations held under the auspices of arbitral institutional bodies. - Takes a novel approach by asserting that U.S. common law discovery should be incorporated into international commercial arbitration - Identifies the key contributors of U.S. doctrinal developments in commercial arbitration as all foundational case-law is examined - The scholarship and novel thesis embodied in this work will be of benefit to both practitioners and academics

The Oxford Handbook of International Trade Law

Editors: Daniel Bethlehem, Donald McRae, Rodney Neufeld, and Isabelle Van Damme. 800 pages Hardback Published: January 2008 For a description of this book please go to http://www.oup.com/uk/catalogue/?ci=9780199231928

  1. Introduction

PART I: THE ECONOMIC AND INSTITUTIONAL CONTEXT OF THE WORLD TRADING SYSTEM

  1. The Evolution of the World Trading System – The Economic and Policy Context
    Gilbert R Winham
  2. The Evolution of the World Trading System – The Legal and Institutional Context
    John H Jackson
    3. The Place of the WTO in the International System
    Donald McRae

PART II: SUBSTANTIVE LAW

  1. WTO Institutional Aspects
    Pieter-Jan Kuijper
  2. GATT
    Federico Ortino
  3. GATS
    Andrew TF Lang
  4. TRIPS
    Andrew D Mitchell and Tania Voon
  5. Responding to National Concerns
    Gabrielle Marceau and Joel P Trachtman
  6. Regional Trade Regimes
    David A Gantz

PART III: SETTLEMENT OF DISPUTES

  1. The Institutional Dimension
    Valerie Hughes
  2. Jurisdiction, Applicable Law, and Interpretation
    Isabelle Van Damme
  3. Procedural and Evidentiary Issues
    Alan Yanovich and Werner Zdouc
  4. Standard of Review in WTO Law
    Jan Bohanes and Nicolas Lockhart
  5. Remedies and Compliance
    Piet Eeckhout
  6. The Limits of Judicial Processes
    William J Davey

PART IV: TRADE AND . . . THE NEW AGENDA AND LINKAGE ISSUES

  1. Trade and Development
    Hunter Nottage
  2. Trade and Environment
    Dan Bodansky and Jessica C Lawrence
  3. Trade and Labour
    Gabrielle Marceau
  4. Trade and Human Rights
    Lorand Bartels
  5. Trade and Health
    Jeffrey Atik
  6. Trade and Investment
    Rodney Neufeld
  7. Trade and Competition Policy
    Mitsuo Matsushita

PART V: THE WIDER FRAMEWORK

  1. WTO and Civil Society Law
    Marcos Orellana
  2. International Trade Law, United Nations Law and Collective Security Issues
    Laurence Boisson de Chazournes and Théo Boutruche
  3. Regulating Multinational Corporations
    Craig Forcese

CONCLUSION

  1. Law , Culture, and Values in the WTO – Gazing into the Crystal Ball

JOSEPH HH WEILER

Index

ICSID

Note: more information on these ICSID cases can be found at http://icsid.worldbank.org/ICSID/Index.jsp

Karmer Marble Tourism Construction Industry and Commerce Limited Liability Company v. Georgia (ICSID Case No. ARB/08/19)

Subject Matter Highway construction project

Date Registered December 31, 2008

Status of Proceeding (View Procedural Details) Pending (Tribunal not yet constituted)

Millicom International Operations B.V. and Sentel GSM S.A. v. Republic of Senegal (ICSID Case No. ARB/08/20)

Subject Matter Telecommunications enterprise

Date Registered December 31, 2008

Status of Proceeding (View Procedural Details) Pending (Tribunal not yet constituted)

TSA Spectrum de Argentina, S.A. v. Argentine Republic (ICSID Case No. ARB/05/5)

Outcome of Proceeding

Award rendered on December 19, 2008; attached to the award is a dissenting opinion by one arbitrator and a concurring opinion by one arbitrator.

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

Pending (on December 16, 2008, the Tribunal holds a hearing on jurisdiction in London and issues a procedural order concerning the stay of the proceeding, pursuant to the parties' agreement)

Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Republic of Kazakhstan (ICSID Case No. ARB/05/16)

Annulment Proceeding

Date Registered November 07, 2008

Date of Constitution of Ad hoc Committee

Constituted: December 12, 2008

Composition of Ad hoc Committee

President: Stephen M. SCHWEBEL (U.S.) Members: Campbell McLACHLAN (New Zealand), Eduardo SILVA ROMERO (Colombian)

Status of Proceeding (View Procedural Details): Pending (ad hoc Committee recently constituted)

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

Pending (pursuant to the parties' agreement, the proceeding is suspended on December 19, 2008)

E.T.I. Euro Telecom International N.V. v. Republic of Bolivia (ICSID Case No. ARB/07/28)

Pending (the Tribunal holds a first session at The Hague on December 16, 2008)

Quadrant Pacific Growth Fund L.P. and Canasco Holdings Inc. v. Republic of Costa Rica (ICSID Case No. ARB(AF)/08/1)

Pending (the Tribunal holds a first session in Washington, D.C. on December 16, 2008)

Participaciones Inversiones Portuarias SARL v. Gabonese Republic (ICSID Case No. ARB/08/17)

Subject Matter Concession regarding two ports

Date Registered December 16, 2008

Status of Proceeding (View Procedural Details) Pending (Tribunal not yet constituted)

Malicorp Limited v. Arab Republic of Egypt (ICSID Case No. ARB/08/18)

Subject Matter Airport construction project

Date Registered December 16, 2008

Status of Proceeding (View Procedural Details) Pending (Tribunal not yet constituted)

S&T Oil Equipment & Machinery Ltd. v. Romania (ICSID Case No. ARB/07/13)

Pending (the Tribunal confirms the parties' agreement regarding the procedural calendar on December 9, 2008)

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

Pending (the Respondent files objections to jurisdiction and a counter-memorial on the merits on December 15, 2008)

Chevron Block Twelve and Chevron Blocks Thirteen and Fourteen v. People's Republic of Bangladesh (ICSID Case No. ARB/06/10)

Pending (the Claimants file a supplemental reply on the merits on December 15, 2008)

AES Corporation v. Argentine Republic (ICSID Case No. ARB/02/17)

Pending (pursuant to the parties' agreement, the suspension of the proceeding is further extended on December 15, 2008)