issue #14, week 25. 17 June 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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- Special Issue on Mergers and Acquisitions (M&A) Disputes and International Arbitration
Editor: Beata Gessel-Kalinowska vel Kalisz; Reviewers: Cecilia Carrara & Luminita Popa - Special Issue on Sanctions and International Arbitration: Impact on Substantive and Procedural Issues
Editors: Ali Burney, Rinat Gareev, Kiran Nasir Gore, Prof. Joel Slawotsky, May Tai - Special Issue on National Courts as a Forum for the Resolution of Disputes under Article 26 Energy Charter Treaty
Editors: John Gaffney, Richard Happ, Lucia Raimanova, Anna-Maria Tamminen, Catharine Titi - Special Issue on International Investment Arbitration - Environmental Protection and Climate Change Issues (Vol 4+)
Editors: Prof. Dr A F M Maniruzzaman, Kiran Nasir Gore, Prof. Dr Stephen Minas - Special Issue on The African Continental Free Trade Agreement (AfCFTA)
Editors: J. Chaisse, J. Górski, E. Laryea, M.M. Mbengue, and K. Olaoye
Recent issues:
- TDM 5 (2018) - Strategic Considerations in Energy Disputes
- TDM 6 (2018) - FDI Moot 2018
- TDM 5 (2018) - Regular issue
- TDM 4 (2018) - Time and Cost Issues in International Arbitration
- TDM 3 (2018) - Sir Elihu Lauterpacht QC
- TDM 2 (2018) - International Commercial and Investment Disputes in and with India
- TDM 1 (2018) - Regular issue
- TDM 5 (2017) - FDI Moot 2017
- TDM 4 (2017) - Comparative and International Perspectives on Mediation in Insolvency Matters
- TDM 3 (2017) - One Belt One Road (OBOR)
- TDM 2 (2017) - Non-Legal Adjudicators in National and International Disputes
- TDM 1 (2017) - Regular issue
- TDM 6 (2016) - FDI Moot 2016
- TDM 5 (2016) - Latin America (vol. 2)
- TDM 4 (2016) - Africa
- TDM 3 (2016) - Three Centuries of Arbitration for Peace
- TDM 2 (2016) - Latin America
- TDM 1 (2016) - CETA
- TDM 7 (2015) - FDI Moot 2015
- TDM 6 (2015) - Regular issue
- TDM 5 (2015) - Yukos Special - OGEL 5 (2015) - Yukos Special
- TDM 4 (2015) - ArbitralWomen/TDM: Dealing with Diversity in International Arbitration
- TDM 3 (2015) - Renewable Energy Disputes - OGEL 3 (2015) - Renewable Energy Disputes
- TDM 2 (2015) - Arbitration in the Middle East: Expectations and Challenges for the Future
- TDM 1 (2015) - The Pacific Rim and International Economic Law: Opportunities and Risks of the Pacific Century
- TDM 6 (2014) - Dispute Resolution from a Corporate Perspective
- TDM 5 (2014) - FDI Moot 2014
- TDM 4 (2014) - CILS - 8th Biennial Symposium on International Arbitration and Dispute Resolution
- TDM 3 (2014) - Regular issue
- TDM 2 (2014) - The New Frontiers of Cultural Law: Intangible Heritage Disputes
- TDM 1 (2014) - Reform of Investor-State Dispute Settlement: In Search of a Roadmap
- TDM 6 (2013) - FDI Moot 2013
- TDM 5 (2013) - Art and Heritage Disputes in International and Comparative Law
- TDM 4 (2013) - Ten Years of Transnational Dispute Management
- TDM 3 (2013) - Corruption and Arbitration
- TDM 2 (2013) - EU, Investment Treaties, and Investment Treaty Arbitration - Current Developments and Challenges
- TDM 1 (2013) - Aligning Human Rights and Investment Protection
- TDM 5 (2012) - Legal Issues in Tobacco Control
- A Liber Amicorum: Thomas Wälde - Law Beyond Conventional Thought
- TDM 5 (2011) - Resolving International Business Disputes by ADR in Asia
- TDM 4 (2011) - Contingent Fees and Third Party Funding in Investment Arbitration Disputes
- TDM 3 (2011) - Intersections: Dissemblance or Convergence between International Trade and Investment Law
NEWS
Amendment to Arbitration Rules Not Retroactive, Court Holds
June 15, http://www.metnews.com/articles/2009/gilb061509.htm
An amendment to the American Arbitration Association's rules, allowing arbitrators to determine their own jurisdiction, cannot be applied where the arbitration agreement was entered into before the amendment was adopted, the Fourth District Court of Appeal has ruled.
Patriot Coal Settles, Seeks Arbitration With Customers
June 15, http://news.morningstar.com/newsnet/ViewNews.aspx?article=/DJ/200906151138DOWJONESDJONLINE000401_univ.xml
Dow Jones - Patriot Coal Corp. (PCX) said Monday it settled with one metallurgical coal customer, while entering arbitration with another amid ongoing weakness in the steel industry.
South Africa: White farms safe from state
June 16, http://www.busrep.co.za/index.php?fSectionId=561&fArticleId=5038255
The state would not seize white farms to redistribute to black people as this would harm the economy, Agriculture Minister Tina Joemat-Pettersson said yesterday.
South Africa cautions farmers on foreign investments
June 16, http://af.reuters.com/article/investingNews/idAFJOE55F0CR20090616
Reuters - South Africa's government will not stand in the way of its farmers investing in other African countries but cannot help protect their investments, its agriculture minister said on Tuesday.
Malaysia Eyes Resumption In FTA Talks With US, Australia
June 16, http://www.bernama.com.my/bernama/v5/news_lite.php?id=418345
Malaysia hopes to resume bilateral talks with the US and Australia soon, said Minister of International Trade and Industry, Datuk Mustapa Mohamed. He said the free trade agreements (FTAs) with Australia and US had been outstanding for some time. Mustapa said there would be a meeting with Australia on the FTA in August.
Speech by Hong Kong Secretary for Justice at Third Regional Arbitration Institutes Forum
June 16, http://www.webnewswire.com/node/458360
The world has undergone very significant changes since your last Forum held in Brunei last August. The financial crisis has knocked the wind off our sails. But fortunately, in Asia, we saw the storm clouds gathering in the US and Europe, and that had given us a little time to prepare for a direct hit. Moreover, the Asian financial crisis a decade ago did teach us some painful but constructive lessons. This is perhaps why the Asia Pacific region appears better able to cope with the current difficulties than many other places. And, touch wood, we in Asia are also less hard hit by the Swine Flu though there is no room for any complacency.
Biogen Idec Announces Conclusion of Arbitration with Genentech
June 16, http://www.reuters.com/article/pressRelease/idUS210847+16-Jun-2009+BW20090616
Biogen Idec announced that an arbitration panel has issued its decision concerning the Company`s collaboration agreement with Genentech, Inc., reaffirming Biogen Idec`s contractual right to fully participate in strategic decisions regarding the development of RITUXAN® (rituximab) and other anti-CD20 antibodies subject to the collaboration.
"Courts Must Have Final Word Over Alternative Dispute Settlement"
June 13, http://www.khaleejtimes.com/DisplayArticle08.asp?xfile=/data/theuae/2009/June/theuae_June278.xml§ion=theuae
DUBAI - The judiciary will always have the final word in settling litigations and disputes, according to judges and legal consultants taking part in a conference session on the experience of the UAE in the application of alternative dispute resolution system. In the session, which was part of the conference on the theme "Effectiveness of Alternative Dispute Resolution (ADR) under the court's syste", most participants shared the opinion that the final word must be that of the courts.
Arbitration cases to touch Dh70bn
June 15, http://www.business24-7.ae/Articles/2009/6/Pages/14062009/06152009_d4bb2123b82b4729981f0347e70ca41c.aspx
The value of arbitration cases in Dubai has more than doubled to Dh65 billion this year over the past year, and about 80 per cent of them are real estate and construction-related, said a top official from the Dubai International Arbitration Centre (Diac).
Public Hearing: Grand River Enterprises Six Nations, Ltd., et al. v.United States of America NAFTA/UNCITRAL Arbitration Rules Proceeding
http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=OpenPage&PageType=AnnouncementsFrame&FromPage=Announcements&pageName=Announcement18
The hearing on the merits in the Grand River Enterprises Six Nations, Ltd., et al. v. United States of America case is scheduled to take place before a three-member arbitral tribunal from 9:00 a.m. on Monday, June 22, 2009 through Wednesday, July 1, 2009.
This case has been initiated under Chapter Eleven of the NAFTA and is governed by the UNCITRAL Arbitration Rules. ICSID is administering the proceedings in this case.
The parties have agreed to make the hearing open to the public, except for those parts which involve confidential matters. The hearing will be broadcast live in room MC C1-110 of the World Bank. The room, which has limited seating, is located at 1818 H Street, N.W., Washington, D.C., 20433. Members of the public wishing to attend are requested to provide to Ms. Katia Yannaca-Small, Ms. Ivania Fernandez and Mr. Marat Umerov of ICSID their names and e-mail addresses in order to arrange for access to the broadcast room. Visitor passes will be issued upon presentation of a valid picture ID. The passes will allow access to room MC C1-110 only.
See also http://www.state.gov/s/l/c11935.htm
Cameras and recording equipment are not allowed on the premises.
New dispute resolution mechanism on its way in UAE
June 11, http://www.gulfnews.com/business/General/10322029.html
Dubai: Disputes between companies in the UAE will be resolved in an amicable manner under a new dispute resolution mechanism within the judiciary, a top government official said on Thursday. Minister of Justice Dr Hadef Jua'an Al Daheri told delegates at a day-long conference that an Alternative Dispute Resolution (ADR) system would be introduced to help solve financial disputes through mediation and arbitration.
Ho Hup keen to revive US$60m Madagascar venture
June 12, http://biz.thestar.com.my/news/story.asp?file=/2009/6/12/business/4099150&sec=business
KUALA LUMPUR: Ho Hup Construction Co Bhd, which is in a legal tussle with the government of Madagascar over a terminated 400km road development project, is eager to settle the dispute amicably and revive the venture. Deputy executive chairman Datuk Vincent Lye said he had met new Madagascar president Andry Rajoelina in mid-May and they would be meeting again next weekend to try and reach a settlement that would benefit both parties.
...
In September 2006, Ho Hup commenced an arbitration claim to recover damages for loss of profits and unlawful termination amounting to US$40mil (RM140mil). This is inclusive of the reimbursement of US$13mil disbursed to the Madagascar government by Ho Hup's banker CIMB Bank last July.
The Madagascar government submitted a counterclaim amounting to US$42mil (RM147mil) and the suit is pending decision at the International Court of Arbitration under the Rules of the International Chamber of Commerce, in Paris.
...
Glen Eagle Resources Inc.: Update on Kinbauri Transaction
June 11, http://www.earthtimes.org/articles/show/glen-eagle-resources-inc-update-on-kinbauri-transaction,857938.shtml
Glen Eagle Resources Inc. takes the position that Kinbauri unilaterally terminated the Subscription Agreement as stated in their press release on June 5, 2009 and accordingly is in breach thereof. The Company has advised Kinbauri that it will pursue a claim for the damages resulting from Kinbauri breach of the Subscription Agreement and that in accordance with the terms of the Subscription Agreement will initiate an arbitration hearing in respect thereof. Glen Eagle Resources believes that Kinbauri's outstanding application in respect to the same issue should be decided in the same legal forum.
India's seabed claim may lead to dispute with Sri Lanka
June 12, http://www.livemint.com/2009/06/12001636/India8217s-seabed-claim-may.html?h=B
The claims arise from an international, UN-facilitated agreement that allows a coastal country to stake claim over seabed that extends beyond its exclusive economic zone
Even as the general election was on in May, India quietly staked claim to nearly half a million sq. km of seabed that contains potentially large reserves of oil, minerals, metals and gas hydrates.
In the next few weeks, it's likely to vie for another half a million sq. km, some of which may conflict with a similar claim by Sri Lanka on the unmarked seabed.
Kalla will not revise investment law
June 11, http://www.thejakartapost.com/news/2009/06/11/kalla-will-not-revise-investment-law.html
Presidential candidate Jusuf Kalla emphasized that he would not revise the 2007 Law on Investment if he wins the presidential election.
Ecuador Beats $1.7 Billion World Bank Arbitration Claim
June 10, http://www.law.com/jsp/tal/digestTAL.jsp?id=1202431379646
It took more than five years, but last week Ecuador and its lawyers from Latham & Watkins finally beat a $1.7 billion international arbitration claim that involved a dizzying array of jurisdictional questions and a bizarre backstory.
The claim was brought by one of Ecuador's indigenous leaders on behalf of an American-owned electrical utility that was seized by Ecuadorian authorities in 2000. The claimant, Miguel Lluco, asserted that he controlled the company, but on June 2, the World Bank's International Centre for Settlement of Investment Disputes concluded that he hadn't proved it, and that it therefore lacked jurisdiction to decide the claim under international law.
See also "Latham & Watkins Wins Major Victory for Ecuador in $2 Billion International Arbitration" http://www.lw.com/News.aspx?page=FirmNewsDetail&channelpost=1498
Ecuador's president replaces oil and mines minister with political aide
June 09, www.mineweb.net/mineweb/view/mineweb/en/page31?oid=84560&sn=Detail
As Ecuador's President Correa vowed to get tougher with multinational oil companies, he appointed a new Oil and Mines Minister who has already been involved in negotiations with international miners and explorers. As he replaced his Oil and Mines Minister, Ecuador's President Rafael Correa vowed to take a tougher line to all multinational oil companies "that still believe they can continue to abuse our country."
Ramco seeking Gunashli compensation
June 9, http://offshore-mag.com/index/article-display/8599560578/s-articles/s-offshore/s-company-news/s-middle-east/s-ramco-seeking_gunashli.html
ABERDEEN -- Ramco Energy is pursuing a claim against the Azerbaijan State Oil Co. relating to rights connected to the Shallow Water Gunashli field in the Caspian Sea.
Both sides are compiling a written case, with a hearing before an arbitration tribunal scheduled later this year in Stockholm.
New ICC Arbitration Court members named
June 9, http://www.iccwbo.org/iccdafdg/index.html
The ICC World Council has named 12 new vice presidents and 41 new members to the ICC International Court of Arbitration. The new appointments bring the total number of Court members to 125.
The ICC World Council made the appointments at its meeting in Kuala Lumpur on the occasion of the ICC World Chambers Federation Congress in Malaysia.
In addition to the new appointments, the World Council renewed the terms of 56 other members and 12 alternates. Court members serve three-year terms. The Court will have 125 members from 86 countries when its new term begins 1 July.
"The appointments of the new vice presidents in particular reflect the global reach of ICC arbitration, the diversity of its users and the continuing ability of the ICC Court to attract both well-known names and rising stars to join it," Court Chairman John Beechey said.
The Court's workload has been growing rapidly during the past several years, with the number of cases registered jumping to 663 last year from 599 in 2007. In addition 407 awards were rendered in 2008, compared with 349 in 2007, while there were 1,317 cases pending compared with 1,285 at the end of the previous year.
Mr Beechey told the ICC Commission on Arbitration in April that the Court was doing all it could to streamline procedures and to improve efficiency ahead of the pending Rules revision process, whilst maintaining the high quality of service expected of the ICC Court.
Last year the Court opened a branch office in Hong Kong, the first outside Paris, which has already registered more than 100 cases. A new Hearing Centre was inaugurated in Paris last year.
Three vice presidents were renamed to a second three year term: Mr Alan Redfern of the United Kingdom; Mr Carl F. Salans of the United States; and Mr Claus von Wobeser of Mexico.
The new vice presidents are: Mr Mohammed Chemloul of Algeria; Ms Karyl Nairn of Australia; Mrs Vera Van Houtte of Belgium; Ms Teresa Yeuk Wah Cheng of China; Mr Alexis Mourre of France; Mr Salim Moollan of France - Mauritius Island; Mr Jan Paulsson of France and Sweden; Mr Klaus Sachs of Germany; Mr Ciccu Mukhopadhaya of India; Mrs Loretta Malintoppi of Italy; Mr Vladimir V. Khvalei of Russia; and Mr Laurent Levy of Switzerland and Brazil.
ICAEW calls for more mediation - Forms new dispute resolution panel
June 10, http://www.accountancyage.com/accountancyage/news/2243825/icaew-calls-mediation
The Institute of Chartered Accountants in England and Wales has launched a new dispute resolution panel with ADR Group that aims to encouragie mediation over litigation for commercial disputes. The Resolving Commercial Disputes panel will comprise of mediation-trained lawyers and accountants.
Senate Finance Committee Chairman Max Baucus applauds U.S. victory in investment dispute
June 11, http://www.tradingmarkets.com/.site/news/Stock%20News/2371702/
Washington, DC - Senate Finance Committee Chairman Max Baucus (D - Mont.) today commended an international panel's finding that certain environmental and other protections imposed by California and the U.S. federal government complied with obligations under the investment chapter of the North American Free Trade Agreement (NAFTA). "This ruling is a clear illustration that we can vigorously protect our environment and remain open to global investment," said Baucus. "I have long pushed for sound investment agreements to safeguard American investors abroad as well as tough environmental laws and regulations to secure our natural resources. Today we heard loudly and clearly that sound investment provisions and sound environmental laws are not mutually exclusive."
NAFTA Tribunal Dismisses Glamis Claim
June 9, http://www.state.gov/r/pa/prs/ps/2009/06a/124527.htm
Office of the Spokesman. Washington, DC, June 9, 2009 - A three-member NAFTA arbitration tribunal rejected a $50 million claim filed by the Canadian mining company, Glamis Gold Ltd., challenging certain actions taken by the Department of the Interior (DOI) and certain measures adopted by the State of California relating to land reclamation in connection with proposed open-pit mining operations. The Office of the Legal Adviser of the Department of State represented the United States in the case.
The claimant, Glamis, submitted its claim to arbitration in 2003, alleging that certain DOI actions and California measures relating to its proposed open-pit gold mine on federal lands in California made development of that project economically infeasible, and deprived it of the value of its investment in that project, in violation of NAFTA investment protections. The tribunal unanimously rejected Glamis' claim and ordered Glamis to pay two-thirds of the arbitration costs.
Background
The Glamis case concerns the claimant's proposed development of the "Imperial Project," a gold mining operation that was proposed to be located on federal lands in the environmentally sensitive California Desert Conservation Area. Glamis claimed that certain actions taken by the DOI during the permitting process, combined with reclamation requirements adopted by the State of California, made development of the project economically infeasible.
Concurrent with the DOI's review of Glamis' proposed Imperial Project, and in order to address concerns about the potential impact of open-pit metallic mines on the environment and Native American cultural resources, the State of California adopted measures requiring all future open-pit metallic mines to backfill and re-grade the large open pits left on mined lands. Glamis claimed that the actions taken by California, together with alleged delay by the DOI in its review of Glamis' application, violated the provisions of NAFTA Chapter Eleven, which, consistent with international law, ensure a minimum level of treatment and prohibit uncompensated takings of property. Glamis alleged that the California measures were politically motivated and lacked any legitimate public policy basis.
The United States maintained that there was no undue delay in the DOI's review of Glamis' application and that the California reclamation requirements were supported by legitimate public policy goals of protecting the environment and Native American cultural resources.
The tribunal agreed with the United States and rejected Glamis' claim in its entirety. It held that the actions and measures in question were supported by legitimate public policy goals and did not violate the minimum standard of treatment provision of the NAFTA or constitute an expropriation of Glamis' investment.
The members of the tribunal are Michael K. Young, David D. Caron and Kenneth D. Hubbard.
The full text of the award, which the parties received yesterday, will be available on the State Department's website at http://www.state.gov/s/l/c10986.htm once the parties make any required redactions of confidential information. Party submissions, amicus curiae submissions, hearing transcripts, and other arbitration documents in the Glamis case are also available on this website, subject to redactions of confidential information.
Disputes going arbitration way for payment issues
June 8, http://www.business24-7.ae/Articles/2009/6/Pages/07062009/06082009_05da802d4e0a4bae94627bf87649ed10.aspx
International contractors who want to stay in the UAE long term are making efforts to amicably resolve payment issues. The UAE will witness a shift wherein construction-related disputes will get into the arbitration stage due to payment issues, according to legal firms. Performance bonds are also being called for 'improper reasons,' the firms told Emirates Business.
Ambrilia Settles its Arbitration With Merck
June 5, http://www.marketwire.com/press-release/Ambrilia-Biopharma-Inc-TSX-AMB-1000036.html
Ambrilia announced that it has settled with Merck Sharp and Dohme Research Limited and Merck & Co. ("Merck") the arbitration pending before the International Court of Arbitration of the International Chamber of Commerce that concerned their Exclusive License Agreement of October 12, 2006 and a November 14, 2003 Confidentiality Agreement (the "Arbitration"). The terms of the settlement provide for the termination of the License Agreement and the Confidentiality Agreement that were a subject of the arbitration, resulting in the return to Ambrilia of its HIV/AIDS protease inhibitor (PI) program and licensed know how and technology. This includes Ambrilia's lead compound, PPL-100, and related technology and compounds. The settlement agreement also provides for the payment by Merck to Ambrilia of an amount of US$2,000,000 within 10 business days of the settlement and a royalty for a period of 10 years from first commercial sale of a certain family of products, and the release of all claims made in the arbitration.
"With this settlement, the return of PPL-100 to Ambrilia strengthens our virology portfolio. We are now in a favorable situation to explore different strategic opportunities for our virology pipeline" said Dr. Philippe Calais, President and CEO of Ambrilia.
Russia implements new law regarding foreign investment
http://www.ogfj.com/index/article-display/361727/s-articles/s-oil-gas-financial-journal/s-volume-6/s-issue-5/s-capital-perspectives/s-russia-implements-new-law-regarding-foreign-investment.html
On May 7, 2008, a new law "On the Procedure for Foreign Investment in Companies Strategically Important for the Defense and National Security of the Russian Federation" (the "Strategic Companies Investment Law") came into effect, restricting foreign control over Russian companies operating in certain "strategic industries" in Russia ("Strategic Companies"). At the same time, amendments to (among other things) the Russian Subsoil Law came into force and, together with further supplements introduced in July 2008, impose significant restrictions on the rights of foreign investors and Russian companies with foreign investment (regardless of the size of foreign investment) to deposits of natural resources that are deemed to be "of federal significance." This article analyzes the terms of the new restrictions on foreign investment and examines the Russian authorities' first steps towards their implementation.
Pakistan and Iran signed on Saturday the formal gas sale-purchase agreement in Istanbul, Turkey.
June 7, http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/news/business/09-gas-price-accord-with-iran-signed-szh--05
'The agreement has been signed in a third country because it is governed by French law, denying any advantage to Iran or Pakistan in case of any dispute,' said the Adviser to Prime Minister on Petroleum, Dr Asim Hussain.
France Telecom, Orascom spar over Mobinil
June 4, http://www.forbes.com/feeds/afx/2009/06/04/afx6505135.html
Reuters - The two main shareholders in Egyptian mobile operator Mobinil traded accusations in the media on Thursday in their increasingly acrimonious row over ownership of the operator.
South African Farmers Claim for Mine Rights, Business Day
June 4, http://www.bloomberg.com/apps/news?pid=20601116&sid=ahzeDtZARabw
South African farmers are submitting claims for damages incurred during the expropriation of their mineral rights, Business Day reported, citing AgriSA, a farmers association.
Farmers are being advised to submit details of their claims to the association as soon as possible, the Johannesburg-based newspaper said, citing Nic Opperman, AgriSA's natural resources director.
Egypt Ordered To Pay $133 Million For Violating Investment Treaty
June 4, http://www.nasdaq.com/aspx/stock-market-news-story.aspx?storyid=200906031341dowjonesdjonline000748&title=egypt-ordered-to-pay-133-million-for-violating-investment-treaty
The Egyptian government has been ordered to pay $133 million to settle a dispute concerning the seizure of a 161-acre resort on the Gulf of Aqaba on the Red Sea, according to international law firm King & Spalding. See also http://www.kslaw.com/portal/server.pt?space=KSPublicRedirect&control=KSPublicRedirect&PressReleaseId=3462
Chavez Moves to Nationalize Venezuela Chemical Plants
June 4, http://www.bloomberg.com/apps/news?pid=20601086&sid=aAiQPa29x8DA
A law requiring private sector chemicals-makers to become minority partners in joint ventures with the state passed its first reading in the national legislature today and will be debated Tuesday, National Assembly Deputy Angel Rodriguez said.
E.D.N.Y Rules that Party Waived Right to Arbitrate in China
June 3, http://www.insurereinsure.com/BlogHome.aspx?entry=1689
In a recent decision of the United States District Court for the Eastern District of New York, Apple & Eve, LLC v. Yantai North Andre Juice Co., Ltd., No. 07-CV-745 (JFB)(WDW) (E.D.N.Y. April 27, 2009), the Court found that the defendant had waived its right to arbitration, thereby rendering the arbitration clause null and void under Article II of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention").
Dr Martin Scheinin: 'We need a World Court of Human Rights'
June 3, http://www.thecommonwealth.org/news/205483/030609un_special_rapporteur.htm
Multinational corporations suspected of abusing human rights should face the full force of international law through trial by a new global court, according to the United Nations' authority on human rights and counter-terrorism Dr Martin Scheinin.
Stalled but not dead: Update on the Canada-Colombia Free Trade Agreement
June 4, http://rabble.ca/news/2009/06/canada-colombia-free-trade-agreement-questionanswer
The Canada-Colombia Free Trade Agreement (CCFTA) was withdrawn from the table while being debated for its second reading in Canadian Parliament on May 27, 2009. Stalled for now, the CCFTA will certainly be back: it has not been defeated, and its proponents (the Conservatives and some of the Liberals) await an opportunity to bring it back.
Court Issues $4.1 Billion Judgment to Employee Confirming Arbitration Award for Unpaid Commissions, Securities, and Punitive Damages for Fraud
http://news.prnewswire.com/DisplayReleaseContent.aspx?ACCT=104&STORY=/www/story/06-02-2009/0005036908&EDATE=
In what may be a record, the Los Angeles County Superior Court has issued a $4.1 billion judgment confirming a JAMS arbitration award. The defendants, including iFreedom Communications International Holdings, Limited, and its founder, Timothy Ringgenberg, were found liable for compensatory and punitive damages in an employment dispute with Paul Thomas Chester, their former Chief Marketing Officer.
Lessons for the new court and tribunal in Qatar
http://business.timesonline.co.uk/tol/business/law/article6425297.ece
Sir Anthony Evans, the first Chief Justice of the DIFC courts: This is a good time to consider the rule of law in an Islamic context. Last weekend the Qatar Law Forum met to discuss the rule of law, the challenge of globalisation and other related topics. Today, the Societies of Inner and Middle Temple begin a series of public discussions in the Temple Church on the subject of Islam in English Law.
AAA Releases Educational DVD on Mediation
June 15, http://www.adr.org/sp.asp?id=36247
The American Arbitration Association recently released a new educational DVD that takes viewers through the process of mediation, from start to finish.
The 38-minute DVD, "Mediation of a Construction Dispute," shows how a fictional construction dispute is resolved through mediation, including what disputants can expect and should prepare for in mediation.
Interim report: On the Workings of Section 69 of The 1996 Act in regard to Maritime Arbitrations In London before The Commercial and Admiralty Court
http://www.lmaa.org.uk/event.aspx?pkNewsEventID=050b7448-7101-430f-968d-cd4322a97b4b
The Commercial Court Users' Committee has asked Lord Mance to investigate the question of appeals from arbitration awards. His terms of reference are to chair a working group to look into the impact of s.69 of the Arbitration Act 1996 and in particular whether there is any case for easing the possibility of access to the court in the limited area of maritime law. The working group has produced its first interim report "On the Workings of Section 69 of The 1996 Act in regard to Maritime Arbitrations In London before The Commercial and Admiralty Court".
PODCASTS
IDN 74 - Effective Apologies: Master Mediator Bob Creo on the Why and How of Saying You're Sorry (June 12).
The view on apologies from a veteran mediator: Robert A. Creo, a longtime friend of the CPR Institute, visits International Dispute Negotiation host Michael McIlwrath in Florence, Italy, to discuss why saying you are sorry can bring about a positive resolution.
Bob has worked as an arbitrator and neutral, from his Pittsburgh hometown, since the 1970s. He says here that the legal system's fear of liability results in actions that run in the opposite direction of human nature's call, which would be to acknowledge mistakes in the hopes of reaching conciliation and moving on.
The podcast, recorded a couple of weeks ago, can serve as an intro and an expansion of an older online continuing legal education seminar, "I'm Sorry? Acknowledgment and Apology in Preventing Medical Malpractice Claims" that Bob conducted for the CPR Institute at WestLegalEdcenter on April 13.
In this week's IDN 74, Bob dissects the methods for effective apologies-ones that mean what they say, and help end often brutal litigation--but which are not pro forma, or from forms.
"I advise people to never script an apology," he says, " and to do it orally, and do it from the heart." ...
IDN 73 - A Case Study: The State of Mediation and Arbitration in Italy (June 8)
Luca Radicati di Brozolo, a partner focusing on arbitration at the Bonelli Erede Pappalardo law firm in Milan, and Andrea Bernava, a litigation partner in the Chiomenti law firm's Rome and Milan offices, set out the current state of mediation and arbitration practices in Italy.
EVENTS
Arbitration of Olympic Disputes Discussed at SLA Conference
http://www.adr.org/sp.asp?id=36131
Attorneys, sports agents and representatives of professional sports teams, leagues and athlete's associations recently gathered for the Sports Lawyers Association's (SLA) annual conference, where arbitration of Olympic sports disputes was one of the topics discussed.
Second Investment Arbitration Forum "Investment Arbitration in a Changing World"
Instituto de Investigaciones Jurídicas, UNAM
September 3 - 4 2009, Mexico, D.F.
More information is available at the conference website.
6th Annual Seminar on International Commercial Arbitration - How to Handle a BIT Arbitration
October 13 - 16, 2009. Washington, DC.
http://www.wcl.american.edu/arbitration
This four-day intensive seminar based on a mock arbitration case will provide critical skills and practical insight into handling BIT arbitration cases primarily under the auspices of the International Centre for Settlement of Investment Disputes (ICSID). Through dynamic interactive lectures and scenario-based exercises, participants will have the opportunity to work in small groups in constant debate with international experts and will be taught skills, strategies, and tactics for successfully conducting a BIT arbitration. The seminar is co-sponsored by the International Court of Arbitration of the International Chamber of Commerce (ICC); the American Arbitration Association; and ICSID.
Energy Dispute Resolution: Investment Protection, Transit and the Energy Charter Treaty, 22-23 October 2009
Brussels, Hotel Le Plaza - Boulevard Adolphe Max, 118-126
In today's energy-dependent world, securing energy investments is a challenge for producer, consumer and transit countries alike. The dramatic breakdown in gas deliveries from Russia to Europe in early 2009 demonstrates the importance of secure transit mechanisms for grid-bound energy investments.
The Energy Charter Treaty (ECT), signed in 1994 and with 53 members, is the only multilateral treaty which covers both investment protection and transit dispute resolution issues.
Following two highly successful conferences in Stockholm in June 2005 and in Washington in May 2007, the Energy Charter Secretariat is pleased to announce this conference, which is organised in conjunction with the Arbitration Institute of the Stockholm Chamber of Commerce, the British Institute of International and Comparative Law, the International Centre for Settlement of Investment Disputes, the International Chamber of Commerce and the Permanent Court of Arbitration.
This one-and-a-half day conference will take place from 2pm on 22 October until 6pm on 23 October 2009.
More information and contact details available here http://www.encharter.org/fileadmin/user_upload/Conferences/2009_October/LAConf_Online.pdf [pdf]
FDI Moot 2009. Frankfurt, Germany 23 - 25 October
The FDI Moot organisers are pleased to announce the 2009 FDI Moot. This year's problem is now posted (www.fdimoot.org/problem.php) and was developed in consultation with distinguished members of the FDI Moot Advisory Board.
The problem examines, inter alia, issues of investor nationality, investment definition, and government compulsory licensing over intellectual property. "Investor nationality was one of the issues proposed to us by Tim Nelson. It is a recurring theme in investment arbitrations, but remains interesting and even controversial, as recent decisions evidence," said Christian Campbell of the Center for International Legal Studies. His FDI Moot co-director, Prof. Christopher Gibson of Suffolk University Law School, added "we wanted to explore new issues this year, such as the importance of intellectual property in foreign direct investment and the potential overlap with international trade regulation."
This year's FDI Moot will be held in Frankfurt, Germany on 23-25 October 2009, hosted by the Deutsche Institution für Schiedsgerichtsbarkeit (DIS) at the Frankfurt International Arbitration Centre. Teams from around the world are expected to participate. The inaugural FDI Moot was held at Suffolk Law School in Boston in November 2008 and had 21 teams participate. The competition was won by the team from Murdoch University of Australia.
MOVES / JOBS
Dr. Richard Happ promoted to partner at Luther
Dr. Richard Happ has been promoted to partner of Luther Rechtsanwaltsgesellschaft mbH, effective 1 July 2009.
King & Spalding Expands Its International Arbitration Practice
June 9, http://www.kslaw.com/portal/server.pt?space=KSPublicRedirect&control=KSPublicRedirect&PressReleaseId=3468
King & Spalding, a leading international law firm, announced today the continuing expansion of its international arbitration practice with the arrival of Caline Mouawad as a counsel in its New York office. Mouawad's arrival brings to 14 the number of lawyers and consultants who have joined King & Spalding's international arbitration practice in the past 24 months. Last month the firm submitted an application to the Paris Bar Council in order to open an office in Paris, a key European venue for international arbitration matters.
"Caline is a perfect fit for the continued growth of our international arbitration practice in New York, as well as in Europe and the Middle East. We are delighted that she has joined us," said Edward G. Kehoe, co-head of the King & Spalding's international arbitration practice.
Mark Kirsch, Joel Cohen and Christopher Joralemon join Gibson Dunn
June 10, http://www.gibsondunn.com/news/Pages/GibsonDunnWelcomesCliffordChanceLitigationTrioToItsNewYorkOffice.aspx
Gibson, Dunn & Crutcher LLP is pleased to announce that Mark Kirsch, Joel Cohen and Christopher Joralemon have joined the firm's New York office as partners. All three were previously with Clifford Chance, where Kirsch served as the Global Chair of the Litigation Practice and a member of its Global Management Committee, and Cohen served as head of its U.S. Litigation & Disputes Resolution Practice. Kirsch joins Gibson Dunn as Co-Chair of its more than 500-lawyer Litigation Practice Group.
BOOKS
International Commercial Arbitration
Eric Bergsten
ISBN13: 9780379002669
ISBN: 0379002663
Latest Release: June 16, 2009
Publisher: Oceana Publications
Country of Publication: USA
Binding: Looseleaf
Subscription Type: Pay-as-you-go
International Commercial Arbitration explores the laws, rules, international treaties and agreements, and regional conventions that dictate procedures in this dynamic area of the law. All of the materials contained in this comprehensive set are translated into English and organized according to jurisdiction for easy access.
The arbitral process - from the arbitration initiation and choice of venue to enforcement to the award - 112 jurisdictions and 113 arbitral institutions and associations are found in this complete source.
- A comprehensive resource featuring the laws, rules, international treaties, and agreements that dictate arbitration procedures giving you the complete overview you need to advise and arbitrate with confidence
- An established collection of International Chamber of Commerce rules with commentary on topics such as optional conciliation, appointing authority, rules of technical expertise, and force mejeure and hardship bringing you up to speed on all of the relevant issues in international arbitration to enable you to pitch for work more successfully
- All of the materials contained in this comprehensive set are translated into English and organized according to jurisdiction for easy access and a hassle-free experience
The Multilaterization of International Investment Law
Stephan Schill
ISBN13: 9780521762366
ISBN: 0521762367
To be Published: September 2009
Publisher: Cambridge University Press
Country of Publication: UK
Binding: Hardback
Price: Not Yet Published
Attempts at developing a theory of international investment law are complicated by the fact that this field of international law is based on numerous, largely bilateral treaties and is implemented by arbitral tribunals established on a case-by-case basis. This suggests a fragmented and chaotic state of the law, with different levels of protection depending on the sources and targets of foreign investment flows. This book, however, forwards the thesis that international investment law develops, despite its bilateral form, into a multilateral system of law that backs up the functioning of a global market economy based on converging principles of investment protection. In discussing the function of most-favored-nation clauses, the possibilities of treaty-shopping and the impact of investor-State arbitration with its intensive reliance on precedent and other genuinely multilateral approaches to treaty interpretation, it offers a conceptual framework for understanding the nature and functioning of international investment law as a genuinely multilateral system.
- Analyzes international investment law in terms of the tension between bilateralism and multilateralism, allowing readers to understand the structure ordering the underlying international relations
- Combines historical, legal, economic and international relations perspectives, to offer different angles and enrich the practical and theoretical discourse on investment law
- Makes intensive references to relevant arbitral jurisprudence, giving readers systematized access to investment treaty awards
- Combines practically relevant topics with academic analysis allowing both practitioners and academics to draw from the arguments presented
Contents:
- Introduction: globalization and international investment law
- The dynamics of multilateralism and bilateralism in international investment relations
- Treaty negotiation and multilateralization of international investment law
- Multilateralization through most-favoured-nation treatment
- Multilateralization and corporate structuring
- Multilateral enforcement of international investment law
- Multilateralization through interpretation: producing and reproducing coherence in investment jurisprudence
- Conclusion: multilateralization - universalization - constitutionalization?
ICSID Concluded
Empresa Eléctrica del Ecuador, Inc. (EMELEC) v. Republic of Ecuador (ICSID Case No. ARB/05/9)
Outcome of Proceeding: Award rendered on June 2, 2009, available on the ICSID Website.
ICSID Pending
New: EVN AG v. Macedonia, former Yugoslav Republic of (ICSID Case No. ARB/09/10)
Subject Matter: Electricity distribution; Date Registered: June 03, 2009; Status of Proceeding: Pending (Tribunal not yet constituted)
New: Global Trading Resource Corp. and Globex International, Inc. v. Ukraine (ICSID Case No. ARB/09/11)
Subject Matter: Poultry products. Date Registered: June 11, 2009. Status of Proceeding: Pending (Tribunal not yet constituted)
Hrvatska Elektroprivreda d.d. v. Republic of Slovenia (ICSID Case No. ARB/05/24)
Status of Proceeding: Pending (the Tribunal issues a decision on the treaty interpretation issue on June 12, 2009)
New: Pac Rim Cayman LLC v. Republic of El Salvador (ICSID Case No. ARB/09/12)
Subject Matter: Mining exploitation concession
Date Registered: June 15, 2009
Status of Proceeding: 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)
Status of Proceeding: Pending, Tribunal constituted June 12, 2009
Giordano Alpi and others v. Argentine Republic (ICSID Case No. ARB/08/9)
Status of Proceeding: Pending (the Respondent files a memorial on jurisdiction on June 11, 2009)
Gustav F W Hamester GmbH & Co KG v. Republic of Ghana (ICSID Case No. ARB/07/24)
Status of Proceeding: Pending (the Tribunal issues a procedural order concerning the hearing on June 12, 2009)
Electrabel S.A. v. Republic of Hungary (ICSID Case No. ARB/07/19)
Status of Proceeding: Pending (a non-disputing party files a written submission pursuant to ICSID Arbitration Rule 37(2) on June 12, 2009)
Azpetrol International Holdings B.V., Azpetrol Group B.V. and Azpetrol Oil Services Group B.V. v. Republic of Azerbaijan (ICSID Case No. ARB/06/15)
Status of Proceeding: Pending (the Tribunal holds a hearing on the Respondent's application of January 2, 2009 in Washington, D.C., on June 6-7, 2009)
LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc. v. Argentine Republic (ICSID Case No. ARB/02/1)
Status of Proceeding: Pending (pursuant to the parties' agreement, the proceeding is further suspended on June 12, 2009)
Karmer Marble Tourism Construction Industry and Commerce Limited Liability Company v. Georgia (ICSID Case No. ARB/08/19)
Status of Proceeding: Pending, Tribunal recently reconstituted, June 11, 2009
Participaciones Inversiones Portuarias SARL v. Gabonese Republic (ICSID Case No. ARB/08/17)
Status of Proceeding: Pending (Tribunal constituted June 09, 2009
Giordano Alpi and others v. Argentine Republic (ICSID Case No. ARB/08/9)
Status of Proceeding: Pending (the Claimants file observations on the Respondent's request for production of documents on April 17, 2009)
Inmaris Perestroika Sailing Maritime Services GmbH and others v. Ukraine (ICSID Case No. ARB/08/8)
Status of Proceeding: Pending (the Respondent files a reply on jurisdiction on May 18, 2009)
Gustav F W Hamester GmbH & Co KG v. Republic of Ghana (ICSID Case No. ARB/07/24)
Status of Proceeding: Pending (the Respondent files a rejoinder on jurisdiction and the merits on June 9, 2009)
Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan (ICSID Case No. ARB/07/14)
Status of Proceeding: Pending (the Respondent files a rejoinder on the merits on April 24, 2009)
Occidental Petroleum Corporation and Occidental Exploration and Production Company v. Republic of Ecuador (ICSID Case No. ARB/06/11)
Status of Proceeding: Pending (the Tribunal holds a hearing on liability in Paris on March 20-21, 2009)
Química e Industrial del Bórax Ltda. and others v. Republic of Bolivia (ICSID Case No. ARB/06/2)
Status of Proceeding: Pending (the Tribunal issues a procedural order concerning the procedural calendar on March 5, 2009)
Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v. Republic of Kazakhstan (ICSID Case No. ARB/05/16)
Status of Proceeding: Pending (Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. files a counter-memorial on annulment on June 9, 2009)
Asset Recovery Trust S.A. v. Argentine Republic (ICSID Case No. ARB/05/11)
Status of Proceeding: Pending (the Respondent files a memorial on jurisdiction on May 1, 2009)
Azurix Corp. v. Argentine Republic (ICSID Case No. ARB/03/30)
Status of Proceeding: Pending (the Claimant files a counter-memorial on jurisdiction on May 14, 2009)
Malicorp Limited v. Arab Republic of Egypt (ICSID Case No. ARB/08/18)
Status of Proceeding: Pending (Tribunal constituted June 02, 2009
Astaldi S.p.A. v. Republic of Honduras (ICSID Case No. ARB/07/32)
Status of Proceeding: Pending (the Respondent files a counter-memorial on the merits on June 1, 2009)
AES Summit Generation Limited and AES-Tisza Erömü Kft. v. Republic of Hungary (ICSID Case No. ARB/07/22)
Status of Proceeding: Pending (the parties file post-hearing briefs on May 29, 2009)
Shell Nigeria Ultra Deep Limited v. Federal Republic of Nigeria (ICSID Case No. ARB/07/18)
Status of Proceeding: Pending (the Claimant files a memorial on the merits on April 30, 2009)
Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC B.V. v. Republic of Paraguay (ICSID Case No. ARB/07/9)
Status of Proceeding: Pending (the Tribunal issues a decision on jurisdiction on May 29, 2009)
Europe Cement Investment and Trade S.A. v. Republic of Turkey (ICSID Case No. ARB(AF)/07/2)
Status of Proceeding: Pending (the Respondent files a submission on costs on June 3, 2009)
Libananco Holdings Co. Limited v. Republic of Turkey (ICSID Case No. ARB/06/8)
Status of Proceeding: Pending (the Claimant files observations on the Respondent's supplement to its counter-memorial and on the Respondent's request for modification of March 3, 2009, on June 4, 2009)
Togo Electricité and GDF-Suez Energie Services v. Republic of Togo (ICSID Case No. ARB/06/7)
Status of Proceeding: Pending (the Tribunal holds a hearing in Paris on witnesses and experts on May 11-14, 2009)
Sistem Muhendislik Insaat Sanayi ve Ticaret A.S. v. Kyrgyz Republic (ICSID Case No. ARB(AF)/06/1)
Status of Proceeding: Pending (the Respondent files a statement on costs on May 6, 2009)
Ioannis Kardassopoulos v. Georgia (ICSID Case No. ARB/05/18)
Status of Proceeding: Pending (the parties file post-hearing briefs on May 22, 2009)
Sociedad Anónima Eduardo Vieira v. Republic of Chile (ICSID Case No. ARB/04/7)
Status of Proceeding: Pending (the Republic of Chile files a rejoinder on annulment on May 25, 2009)
Compagnie d'Exploitation du Chemin de Fer Transgabonais v. Gabonese Republic (ICSID Case No. ARB/04/5)
Status of Proceeding: Pending (the Gabonese Republic files a counter-memorial on annulment on May 28, 2009)
Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines (ICSID Case No. ARB/03/25)
Status of Proceeding: Pending (the ad hoc Committee issues a decision on the request for an order of protection on June 3, 2009)
Continental Casualty Company v. Argentine Republic (ICSID Case No. ARB/03/9)
Status of Proceeding: Pending (ad hoc Committee reconstituted June 03, 2009)
Víctor Pey Casado and President Allende Foundation v. Republic of Chile (ICSID Case No. ARB/98/2)
Status of Proceeding: Pending (the Respondent files a reply to the Claimants' observations of April 17, 2009, on April 22, 2009)