issue #19, week 37. 09 September 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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TDM
TDM 2 (2009) - The Protection of Intellectual Property Rights through International Investment Agreements
This new issue analyses the level of protection granted by International Investment Agreements (IIAs) in regard to Intellectual Property Rights (IPRs). We would like to thank the editors of this special James Hosking (Chaffetz Lindsey LLP) and Markus Perkams (Clifford Chance) for their time and efforts in preparing this issue.
EDITORIAL
- Introduction TDM Special: "The Protection of Intellectual Property Rights
through International Investment Agreements"
by J. Hosking, Chaffetz Lindsey LLP
M. Perkams, Clifford Chance
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS THROUGH INTERNATIONAL INVESTMENT AGREEMENTS
- The Protection of Intellectual Property Rights Through International
Investment Agreements: Only a Romance or True Love?
by J. Hosking, Chaffetz Lindsey LLP
M. Perkams, Clifford Chance
- Coverage of Intellectual Property Rights in International Investment
Agreements: An Empirical Analysis of Definitions in a Sample of Bilateral
Investment Treaties and Free Trade Agreements
by R.A. Lavery, Gibson, Dunn & Crutcher LLP
- Intellectual Property as Transnational Investment: Some Preliminary
Observations
by J.D. Mortenson, The University of Michigan Law School
- International Standards for Protection of Intellectual Property Rights
Post-TRIPS: The Search for Consistency
by A.M. Anderson, Briggs and Morgan
B. Razavi, Briggs and Morgan
- Intellectual Property Rights in International Investment Agreements: An
Overview
by L. Liberti, OECD
- Fair Treatment of Intellectual Property Rights Under Bilateral Investment
Treaties
by J. Mendenhall, Sidley Austin LLP
- Can Patent Revocation or Invalidation Constitute a Form of
Expropriation?
by M.L. Seelig, Shearman & Sterling LLP
- A Look at the Compulsory License in Investment Arbitration: The Case of
Indirect Expropriation
by C.S. Gibson , Suffolk University Law School
- Compulsory Licensing and Public Health: TRIPS-Plus Standards in Investment
Agreements
by R. Castro Bernieri, European Doctorate in Law and Economics, University of Bologna
- Mapping Uncharted Waters: Intellectual Property Disputes With Public
Health Elements in Investor-State Arbitration
by V.S. Vadi, European University Institute
- Intellectual Property Rights as an Investment: Options for Developing
Countries
by C.M. Correa, Law Faculty, University of Buenos Aires
- Remedies Available Under Bilateral Investment Treaties for Breach of
Intellectual Property Rights
by R.J. Szczepanik, King & Spalding LLP
B.A. White, King & Spalding LLP
Young-OGEMID virtual symposia
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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
Ramco Energy SOCAR arbitration hearing scheduled for October
Sep 07, http://www.ramco-plc.com/downloads/Proposed%20Change%20of%20Name%20etc.pdf
Ramco are pursuing a claim against SOCAR relating to rights connected to the shallow water Gunashli field in Azerbaijan. Arbitration before the Stockholm Chamber of Commerce between Ramco Hazar Energy Limited, a wholly owned subsidiary of the Company, and The State Oil Company of Azerbaijan Republic in relation to the Gunashli field located offshore of Azerbaijan in the Caspian Sea. An arbitration hearing has been scheduled for October 2009 in Stockholm and the outcome is expected to be known before the year end.
ICSID rejects Turkish Co $756m claim against Pakistan
Sep 06, http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/Business/06-Sep-2009/ICSID-rejects-Turkish-Co-756m-claim-against-Pak
An arbitral tribunal appointed by the International Centre for Settlement of Investment Disputes (lCSID) of the World Bank hearing a claim brought by a Turkish investor against the Islamic Republic of Pakistan has rejected all claims for breach of a bilateral investment treaty between the two countries.
Long-standing Eryx missile dispute comes to an end
Sep 7, http://www.todayszaman.com/tz-web/news-186269-105-long-standing-eryx-missile-dispute-comes-to-an-end.html
The Geneva-based International Court of Arbitration of the International Chamber of Commerce (ICC) issued its ruling in late July over a French complaint concerning Turkey's cancellation of a 404 million euro missile contract in 2004. The court verdict is not yet available to the public, but the Defense Ministry said in a statement on Wednesday that the court ruling was in Turkey's favor.
AAA, Bahrain Sign Agreement to Establish ADR Center
Aug 31, http://www.adr.org/sp.asp?id=36555
The American Arbitration Association and Bahrain's Ministry of Justice and Islamic Affairs recently signed an operating agreement to establish the Bahrain Chamber for Dispute Resolution (BCDR-AAA).
Bahrain's Justice Minister HE Sheikh Khalid bin Ali bin Abdulla Al Khalifa and AAA President and CEO William K. Slate II signed the agreement in a ceremony held on Aug. 17 at the Bahrain Embassy in London. The new center is scheduled to open later this year.
"The establishment of the Bahrain Chamber for Dispute Resolution, in partnership with the AAA, is a significant step forward, not only for Bahrain, but for the wider region. The BCDR-AAA will provide users, including international legal firms, multinationals and governments contracting in the Gulf and beyond, with a purpose-built solution for the rapid, effective and certain resolution of commercial disputes," said Sheikh Khalid. He said that while the BCDR-AAA will be based in Bahrain, he expects it to act as a hub for ADR users in the Gulf region.
...
Singapore to Make Billions Handling Cross-Border Arbitrations
Aug. 31, http://www.bloomberg.com/apps/news?pid=20601087&sid=ahCVZh1pBhKo
"When there's an international case in Singapore [like this], you attract a cast from all over the world," said Matthew Gearing, a Hong Kong-based partner at Allen & Overy LLP. That sort of influx could produce a "multibillion-dollar industry" for Singapore as cross-border disputes increase in the region, Law Minister K. Shanmugam said. To spur growth, the city-state has opened its legal market to foreign firms, offered tax incentives and developed a complex with 14 hearing rooms.
South Africa: Land grab law, what's next
Aug 27, http://www.realestateweb.co.za/realestateweb/view/realestateweb/en/page310?oid=18730&sn=Detail
Land expropriation Bill shelved for now, but will be revived next year. The "shelved" land expropriation Bill has been a contentious issue long before it made it to Parliament this year. At a public debate held at the University of the Witwatersrand this week, delegates expressed grave concern over what government proposes to achieve - and concerns were raised about the inefficiencies with the implementation of other land reform programmes. Thembeka Ngcukaitobi, a partner at Bowman Gilfillan who was involved in drafting the expropriation Bill, said the draft law has been "shelved" officially and will be revived in 2009.
South Africa: Land grabs, back on the table
Aug 31, http://www.realestateweb.co.za/realestateweb/view/realestateweb/en/page197?oid=47446&sn=Detail
Fresh expropriation talk worries biggest property investors. The prospect of mass land grabs is back on the table. And the fresh expropriation talk is worrying South Africa's biggest property investors.
Bavarian Nordic rejects claim from Helmholtz Zentrum München
Aug 31, http://www.bavarian-nordic.com/21-09_UK
Bavarian Nordic A/S announced that it has been notified by the ICC International Court of Arbitration that a request for arbitration has been received from Helmholtz Zentrum München, Deutsches Forschungszentrum für Gesundheit und Umwelt GmbH (formerly also known as GSF).
The arbitration request is based on two old agreements with Bavarian Nordic from 1994 and 1997 regarding a collaboration on certain recombinant vaccines, which was formally terminated in 2001. The agreements do not encompass the MVA-BN® patents but provide Bavarian Nordic with exclusive royalty bearing license to specific patents on recombinant vaccines and include clauses dealing with transfer of know how pertaining thereto. Nevertheless, Helmholtz Zentrum München now in 2009 claims rights to royalties on Bavarian Nordic's MVA-BN® based vaccines, including IMVAMUNE®.
Anders Hedegaard, President & CEO of Bavarian Nordic said: "We view this claim based on the old agreements as being baseless and without merit. We are confident that we will prevail should this claim continue at the Court of Arbitration."
TNK-BP files claim to the Federal Customs Service at the Arbitration Court of Moscow
Aug 26, http://www.tnk-bp.com/press/news/2009/8/1497/
TNK-BP is charging more than 6 billion rubles from the Federal Customs Service of Russia. TNK-BP has filed a claim to the Federal Customs Service at the Arbitration Court of Moscow demanding 6.4 billion rubles to compensate for the losses and damages inflicted to the company. According to the company, the customs authorities incorrectly imposed taxes on export of oil and oil products in 2006-2007. Experts think that the company will most certainly win the case and other exporters inspired by this case will probably file similar claims to the court of law.
Bank Leumi, Holocaust survivors seek arbitration on assets dispute
Aug 25, http://www.ynetnews.com/articles/0,7340,L-3767098,00.html
Association for the Location and Recovery of Holocaust Survivors' Property, bank agree to resolve four-year dispute via arbitration proceeding. Association claims bank holds some NIS 300 million, bank says figure incorrect
Verenex provides update on discussions with Libyan Authorities
Aug 25, http://micro.newswire.ca/release.cgi?rkey=1708257365&view=82746-0&Start=0
Verenex Energy Inc. announces the status of its discussions with representatives of the General People's Committee (the "GPC") of Libya in connection with the proposed sale of Verenex.
As previously disclosed, Verenex entered into an acquisition agreement with CNPC International Ltd. ("CNPCI") on February 24, 2009 (the "CNPCI Agreement") under which CNPCI agreed to make an offer to purchase all of the outstanding Verenex Shares, on a fully-diluted basis, at a price of Cdn$10 per share and to also fund a Cdn$47 million approval bonus to the Libya National Oil Corporation (the "NOC"). Consent by the NOC to the offer by CNPCI is required under the Exploration and Production Sharing Agreement for Area 47 (the "EPSA"); however, under the terms of the EPSA, such consent cannot be unreasonably withheld.
While the outside date under the CNPCI Agreement (August 24, 2009) has now passed, the CNPCI Agreement has not yet been terminated by either party to the agreement.
Despite Verenex having complied with all the requirements of the EPSA and the NOC throughout the public sale process, the NOC has continually failed or refused to provide consent to the proposed sale of Verenex. The GPC has made it clear to Verenex that it is seeking to negotiate a reduced purchase price. In accordance with the dispute mechanism under the EPSA, Verenex has finalized and is ready to file an arbitration claim should it become necessary to pursue this legal remedy. However, Verenex and Libyan authorities are presently fully engaged in discussions to reach an amicable solution to the current impasse on the sale of Verenex without Verenex having to pursue its legal remedies.
Verenex understands that the Government of Canada has again expressed its concerns to the Government of Libya respecting the actions, and lack of action, by the NOC and the GPC in connection with this matter.
Investors are cautioned that there can be no assurance that consent to the offer by CNPCI will be received from Libyan authorities, or that a sale transaction will be concluded on the terms contemplated or at all.
Facing deadline, Verenex hopes for Libyan deal
Aug 21, http://www.calgaryherald.com/business/Facing+deadline+Verenex+hopes+Libyan+deal/1918296/story.html
Verenex Energy Inc. said Friday it was optimistic a deal could be reached with Libya over the Calgary-based oil and gas company's leases in the North African country before a Monday deadline, but that it still hadn't received any formal indication of what it might entail.
Libya still not approved $460m Verenex takeover
Aug 24, http://www.arabianoilandgas.com/article-6060-libya_still_not_approved_460m_verenex_takeover/
The proposed US$460 million takeover of the exploration and development company Verenex Energy by the China National Petroleum Corporation (CNPC) has still not received approval from Libya. CNPC had given the Canadian company until August 24 to attain consent but as yet the North African state has remained silent. "I think it's done, it's over," a Verenex shareholder is quoted by Reuters as saying.
London court rules a total of $82.6 million for Ashcroft against GOB
Aug 25, http://www.amandala.com.bz/index.php?id=9006
BCB Holdings and its subsidiary, the Belize Bank, issued a release on Friday, August 21, declaring that the London Court of International Arbitration (LCIA) had awarded the companies BZ$44 million (US$22 million) in a dispute with the Government of Belize stemming from agreements with the Musa administration back in 2006. "We will resist any attempt to enforce that ruling," Prime Minister and Minister of Finance Dean Barrow told Amandala today, declaring that the award is "unenforceable."
Prime Minister's Introduction of Bill to have Government assume control of Belize Telemedia Ltd.
Aug 24, http://www.governmentofbelize.gov.bz/press_release_details.php?pr_id=5613
Mr. Speaker,
I rise to introduce the Bill for an Act to amend the Belize Telecommunications Act to provide for assumption of control over telecommunications by the Government in the public interest; and to provide for matters connected therewith or incidental thereto.
Let me at once say that the long title is quite clear and what the government is doing by way of introducing this measure, is preparing to take control of the company formerly known as Belize Telecommunications Limited, and currently going by the name of Telemedia.
I must also say immediately, Mr. Speaker, that government intends to take the Bill through all its stages today. The Senate will then meet tomorrow, and we expect that the Bill will be signed into law by tomorrow evening or Wednesday morning at the latest. At that time the new, Government-appointed Board of Directors will assume operational control over Telemedia, and the re-Belizeanization of the company will be complete.
...
Now no one can doubt the justice of our stand. But, as we always knew, it has been costly. Michael Ashcroft had Telemedia invoked arbitration in London to enforce the Accommodation Agreement. And he obtained a judgment of 38.5 million dollars and a court - mandated requirement that government now begin to honor the Accommodation agreement.
Well, I have said that as God is my witness I will never pay that award. But it doesn't stop there. In April of 2009 Telemedia informed the government of further claims they will make to the London Court of International Arbitration, and that the size of a new award "could pale the current award of 38 million into insignificance".
Technest Wins Unanimous Binding Arbitration Award of Over $23 Million
Aug 24, http://www.reuters.com/article/pressRelease/idUS113759+24-Aug-2009+MW20090824
On August 21, 2009, an American Arbitration Association Panel of three arbitrators awarded Technest Holdings, Inc. $23,778,402.83 following a seven-day hearing that ended on June 30, 2009.
US military contractor contests ICC damages
http://www.gulf-times.com/site/topics/article.asp?cu_no=2&item_no=307998&version=1&template_id=36&parent_id=16
US military contractor Dyncorp is trying to stop a US federal judge in Washington from enforcing a $1.1mn award handed down by the ICC International Court of Arbitration to a Qatari-based company, arguing that the award was invalidated by Qatar's highest appeals court.
Houstonian battles the Kremlin
Aug 22, http://www.chron.com/disp/story.mpl/business/steffy/6582714.html
From a cluttered desk at his suburban home in north Houston, Bruce Misamore wages a global battle to recover assets of a long-dead oil company. He's involved in court actions across Europe as well as in Texas and Russia, where he can't go for fear of being arrested. He still hands out business cards with the yellow-and-green logo of Yukos, once Russia's second-largest oil company, where he was chief financial officer.
London tribunal dismisses Belize Bank's claim
17 Aug, http://www.governmentofbelize.gov.bz/press_release_details.php?pr_id=5595
The Government of Belize has received, from the London Court of International Arbitration, an official copy of the "First Partial Award" made by the Arbitral Tribunal in the matter of the Belize Bank Limited v the Government of Belize.
The Tribunal has dismissed all the claims of the Belize Bank against the Government of Belize, arising out of the so-called 2008 oral settlement agreement. That was an agreement between the Musa administration and the Belize Bank, which diverted the 10 million (US) gifted to the people of Belize for housing by the Government of Venezuela. The money was instead paid over to the Belize Bank by the Musa administration in supposed settlement of the infamous UHS debt. It was, however, later recovered by the current administration via the efforts of the Central Bank of Belize.
In particular, the London tribunal dismissed the Belize Bank's claim that the payment to and receipt by the Belize Bank of the US $10 million was lawful; and dismissed its claim for damages against the Government of Belize in the sum of US $10 million plus interest from 11 August 2008.
In coming to its decision, the Tribunal impugned the actions of then Prime Minister Said Musa, Attorney General Francis Fonseca and Home Affairs Minister Ralph Fonseca, as well as the conduct of the Belize Bank.
The Tribunal declared that the Venezuelan US $10 million "should have been paid into the (Belize) Consolidated Revenue Fund..........before any transfer could be made to the Claimant subject to the controls set out in the Finance Act........The oral agreement (between the Musa administration and the Belize Bank) therefore violates Article 114 (1) of the Belize Constitution and section 3 of the Finance Act".
Importantly, the tribunal explicitly found that one of the fundamental objectives of the 2008 Settlement Agreement between the Claimant and the Government of Belize......."was to ensure that the existence of the Venezuelan Funds remained concealed from the National Assembly and the Belize public so that the controls set out in the Finance Act could be avoided......"
In all the circumstances the tribunal declared that the agreement between the Musa administration and the Belize Bank concerning the Venezuelan funds is void for illegality and that the Central Bank of Belize acted properly in requiring the return of the monies.
the Government of Belize notes that the London Tribunal is still to determine the Belize Bank's claim that, the Venezuelan monies apart, the Government of Belize is to pay 33,545,820 under the March 2007 Settlement Agreement and Loan Note made by the Musa administration regarding the UHS debt.
That decision has been reserved for a date to be fixed, but in the meantime the government has welcomed the current decision. GOB sees it as a strong censure of the illegal and outrageous secret deal between the PUP government and the Belize Bank, and a vindication of the UDP's struggle for, and recovery of, the People's Venezuela 10 million US.
Arbitration judges discuss issues of arbitration proceeding in Uzbekistan
Aug 20, http://business.uzreport.com/uzb.cgi?lan=e&id=65965
Arbitration judges from all regions of Uzbekistan attended summer school on the "Actual issues of arbitration proceeding in Uzbekistan. Introduction to commercial mediation" in the recreation zone Charvak Oromgohi in Bostanliq area, Tashkent region, on 18-20 August.
Gulf states plan single arbitration law
Aug 22, http://www.business24-7.ae/Articles/2009/8/Pages/21082009/08222009_cd3ddb0adde446749ef2201ee4b4b068.aspx
The six-nation Gulf Co-operation Council (GCC) is planning to create a unified arbitration system to tackle persistent cross-border business disputes that are blocking the flow of trade and investment in the region, said representatives of the GCC's private sector yesterday.
The Federation of the GCC Chambers of Commerce and Industry (FGCCI) said it had drafted a new law on a unified arbitration mechanism in the six countries and presented it to the Riyadh-based GCC secretariat for approval.
EVENTS
The Yukos Affair in Context - Emmanuel Gaillard at Harvard Law School - September 21 2009
The Yukos Affair in Context: the Energy Charter Treaty and Russia's Energy Policy
A Talk with Emmanuel Gaillard, Professor of Law, Paris XII University;
Head of the International Arbitration Group, Shearman & Sterling LLP
When: Monday, September 21, 2009 | 5:00 PM - 6:30 PM
Where: Langdell North, Harvard Law School
In the context of the claims brought by the majority shareholders of former Yukos Oil Company against the Russian Federation under the Energy Charter Treaty, Professor Gaillard will address investment protection and arbitration under the Energy Charter Treaty, and the Russian Federation's proposals for a new instrument replacing the Energy Charter Treaty.
Professor Gaillard will be introduced by William P. Alford, Henry L. Stimson Professor of Law; Vice Dean for the Graduate Program and International Legal Studies at Harvard Law School.
For further details, please contact Ilija Mitrev Penusliski.
LCIL Friday Lunchtime Lecture: Stating the Law of Investment Arbitration - A Quixotic Enterprise? Friday 9th October 2009, 13:00
http://www.lcil.cam.ac.uk/news/article.php?section=26&article=984
Speaker : Mr Zachary Douglas, Jesus College, Cambridge
Time : Lecture starts at 1pm (with lunch, sponsored by Cambridge University Press, from 12:30pm)
Venue : Finley Library, Lauterpacht Centre, 5 Cranmer Road, Cambridge
Ethics, Issue Conflicts and Arbitrator Challenges
http://www.biicl.org/events/view/-/id/376/
Friday 11 September 2009 09:00 to 15:30
CBI Centre, First Floor, Centre Point Tower, 103 New Oxford Street, WC1A 1DU
In recent times ethical issues have featured prominently in investment treaty arbitration. Parties have challenged arbitrators on numerous occasions, in different forums, national and international (most recently in Hrvatska Elektroprivreda, d.d. v. Slovenia; EDF v Argentina awards and the NAFTA case Grandriver Enterprises v USA) and on a variety of grounds. The conference will review and analyze the emerging practice on relevant matters such as repeat appointments, issue conflicts, duty of disclosure, financial interest, same-chamber barrister participation and others, with a view to discern good practices in this area for both counsel and arbitrators.
Düsseldorf International Arbitration School, September 21st - September 25th 2009
The last decades of the twentieth century have seen a phenomenal boom in international arbitration, with all the hazards and vagaries that come with sudden success. Anyone dealing with business transactions crossing borders now needs to be familiar with the special features of international commercial arbitration. The five-day Düsseldorf International Arbitration School aims at providing young practitioners, post graduates and advanced students - especially Moot Court participants - with the requisite specific knowledge. The School is based on a highly practical, inter-active teaching concept. Participants get the rare opportunity to improve their skills and knowledge in both the law and practice of international commercial arbitration.
More information at http://www.jura.uni-duesseldorf.de/arbitration
Resolution of Russia-Related Business Disputes: The Next Wave
September 21, Moscow, Russia, http://new.abanet.org/calendar/ic0909-resolution-of-russia/Pages/default.aspxProgramme:
- Arbitration in Russia: The Current State of Play and Prospects for the Future
- Investment Treaty Arbitration: A Strategic Option or Legal Defense?
- Russians Abroad-The Experience of Russian Companies in Foreign Litigation and Arbitration
- Representing Foreign Parties in Russian Courts
- Related Civil and Criminal Proceedings in Russia
Who is Driving Arbitration? Party Autonomy versus the Arbitrator's Power to Manage the Arbitral Process
September 22, 2009, http://www.adr.org/sp.asp?id=33639
This event will feature an in-depth and thought provoking debate on the tension between party autonomy and the arbitrators' power to manage the arbitral process. Do arbitrators serve the parties, or vice versa? Who sets the limits to arbitrators' authority to control the arbitration? And whose arbitration is it anyway? These and other topical questions will be raised in a keynote speech by Carolyn Lamm (White & Case LLP) and developed through two panel discussions with experienced Russian and foreign practitioners, including William R. Spiegelberger (Rusal United Co.), Jennifer Kirby (Herbert Smith), Dmitry Dyakin (Magisters), Michelangelo Cicogna (De Berti Jacchia), Ilya Nikiforov (Egorov, Puginsky, Afanasiev & Partners), Yulia Andreeva (Debevoise & Plimpton LLP), and Yasmin Mohammad (Freshfields Bruckhaus Deringer). The panelists will examine the main theme of the seminar from the various perspectives, legal, policy and cultural, and discuss the availability (or desirability) of practical solutions under the ICDR and MKAS arbitration rules.
The New Challenges of International Arbitration
September 22, 2009 - Hôtel Raphael, Paris
7th European Colloquium hosted by Young Arbitration Practitioners. Programme:
- International arbitration and financial crisis - What to expect?
Moderators: Michael Schneider, Lalive, Geneva - Simon Greenberg, ICC
- The impact of the financial crisis on commercial and investment arbitrations
Jan Schäfer, Allen & Overy, Frankfurt
- How should an arbitral tribunal deal with the bankruptcy or the insolvency of a party?
Melanie van Leeuwen, Loyens & Loeff, Paris
- The arbitrator facing the judge - A selection of current hot issues in international arbitration
Moderators: Pierre Mayer, Dechert, Paris - Sophie Lamb, Debevoise & Plimpton, London
- Arbitrator independence and duty to disclose: Where do we stand? Are we going too far or not far enough?
Eduardo Silva Romero, Dechert, Paris
- The circulation of judicial decisions in relation to arbitration and the Heidelberg report proposals: A step in the right direction or a Pandora's box?
Olivier Caprasse, Hanotiau & van den Berg, Brussels
https://www.transnational-dispute-management.com/news/yap-vii-2009.pdf
International Arbitration: Make It Faster and More Cost-Effective - 25 September 2009
25 September 2009, Rome, Italy.
The ArbIt’s kick-off conference will see the participation of Italian and foreign international arbitration experts, who devoted particular attention in the past years to the issue of efficiency of arbitration proceedings and to the actual degree of satisfaction of arbitration by the end users. Speakers include Paolo Berruti, Loukas Mistelis, Michael McIlwrath, Piero Bernardini, Mauro Gigante, Simon Greenberg, Stefano Azzali, Gianluca Benedetti, Michelangelo Cicogna. Attending the seminar is free of charge – the seminar will be held in English
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.
2nd St.Gallen International Dispute Resolution Conference - Judicial Dialogue in Times of Globalization and Regionalization
15 - 16 October 2009, University of St.Gallen, Switzerland
Chaired by Prof. Dr. Carl Baudenbacher, President of the EFTA Court, the conference brings together top-ranking scholars, arbitrators, judges and counsels from Europe and the US. Formerly established in Austin, this year's St.Gallen edition deals with 'Judicial Dialogue'. By citing foreign case-law, arbitrators and judges are increasingly engaging in a judicial dialogue. The panels and keynotes, featuring inter alia Christoph Paulus, Alan Rau, Pierre Tercier and Jay Westbrook, discuss the chances and challenges of such dialogue.
Attendees from law practice and academia will enjoy the beautiful setting of St.Gallen's historic abbey district. It offers a splendid atmosphere for stimulating discussions and the opportunity to get directly in touch with outstanding speakers and colleagues during coffee and lunch breaks.
Find more information and register on www.sg-disputeresolution.com
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/index.php?id=472 [pdf]
Dispute Resolution in the International Oil & Gas Sector October 26 - 27
Capella Hotel, Singapore
A joint AIPN, SIAC and ICDR conference. Topics Include:
- Historical overview of dispute resolution in the international oil & gas industry;
- Current and emerging issues in international oil and gas dispute resolution;
- Effective drafting and negotiation of dispute resolution clauses in oil & gas agreements;
- Framework of national and international law in oil & gas investment disputes;
- State investment treaties and disputes;
- Review of boundary, environmental and decommissioning disputes in the oil & gas sector.
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.
International Commercial Arbitration in Latin America: The ICC perspective 1-3 November 2009
http://www.iccwbo.org/events/display12/index.html?CodeICMS=S0918
Venue: Ritz-Carlton South Beach, Miami FL
Date: 1-3 November 2009
ICC's annual Miami conference will shed light on the latest developments in International Commercial Arbitration in Latin America, the conference will bring together some of the world's leading practitioners and scholars as speakers. Topics this year include: a roundtable on Arbitrating under economic distress, arbitrating natural resources disputes, a special session on developing international arbitration in Latin America: the Brazilian and Mexican experiences and a session on ethics. Participants will benefit from the many networking and social activities organized during the conference.
50 Years of Bilateral Investment Treaties Conference 2009 December 1 to 3, 2009
http://www.50yearsofbits.com/
The 50th anniversary of signing the world's first Bilateral Investment Treaty (BIT) is being marked by a conference organized under the patronage of the German Federal Ministry of Economics and Technology. The conference will be held in Frankfurt from December 1 to 3, 2009. It will bring together distinguished international academics, advocates, arbitrators, economists, investors, policy makers and political scientists to identify and debate the current status of investment protection around the world, and the policy issues which are likely to influence its development over the decades to come.
Topics will include:
- Original Intent, Development and Economic Significance of BITs
- Current Substantial and Procedural Approaches in BITs around the World
- The Future of Investment Treaty Protection
- Europeanization and Regionalism: Challenges to BITs?
- What and Who are Protected: Are the Concepts of "Investment" and "Investor" being redefined?
- To Protect or not to Protect: Is there Non-protected Investment?
- The Changing Face of Investor-State Arbitration.
The full program of the conference and list of speakers, as well as registration details, may be found at www.50yearsofbits.com
Investment Treaty Law and Arbitration: Evolution and Revolution in Substance and Procedure, 19-20 February 2010 [pdf]
http://www.law.usyd.edu.au/events/2010/Feb/Papers_InvTreatyConf.pdf
Venue: Sydney Law School, University of Sydney, Australia
This conference explores some of the most controversial issues in contemporary investment treaty law and arbitration discourse and practice. A global web of investment treaties has emerged, free trade agreements increasingly contain investment protection provisions, and investor-State arbitration is now well-established on the international plane as a significant dispute resolution mechanism. These developments are, however, impacting on a wide range of non-investment areas and politico-legal issues. The conference will explore these impacts, emerging issues in the nature of investment treaties, evolving jurisprudential trends, and potential changes in future direction for investment law and arbitration.
5th Annual Conference on International Arbitration and Mediation - Fordham Law School. New York City, June 14-15 2010
The conference will bring together leading international arbitrators, mediators, practitioners, and scholars to discuss contemporary issues in international arbitration and mediation.
June 14 - 15 2010, McNally Amphitheatre, Fordham Law School
Conference director: Arthur Rovine. Maurice Mendelson, Q.C. will be a speaker and moderate one of the panels, more details to follow.
For more information and online registration, please visit law.fordham.edu/arbitration.
BOOKS
Confidentiality in Arbitration
Commentaries on Rules, Statutes, Case Law and Practice
ICC International Court of Arbitration Bulletin
2009 Special Supplement
ICC Publication No. 700, 2009 Edition
The extent to which arbitral proceedings are confidential has been the subject of conflicting interests, divergent legislation and regulations and evolving case law.
This publication traces the history of changing attitudes to the subject of confidentiality in arbitration, identifies the issues at stake and draws the lessons to be learned from this complex debate. It addresses the question of whether and to what extent there is an obligation of confidentiality in arbitration and its impact on the conduct of the proceedings.
The authors present and analyse institutional rules, national legislation and seminal court decisions in jurisdictions across the world and offer insights into the practical means of addressing the problems confidentiality may raise for parties and arbitrators in arbitral proceedings.
Comparing differing cultural approaches to this highly topical subject, Confidentiality in Arbitration will be of interest to practitioners and academics alike.
Table of Contents
- Antonias Dimolitsa: Institutional Rules and National Regimes Relating to the Obligation of Confidentiality on Parties in Arbitration
- George Burn and Alison Pearsall: Exceptions to Confidentiality in International Arbitration
- Michael Hwang and Katie Chung: Protecting Confidentiality and its Exceptions—The Way Forward?
- Yves Derains: Evidence and Confidentiality
- Abby Cohen Smutny and Kristen M. Young: Confidentiality in Relation to States
- Serge Lazareff: Confidentiality and Arbitration: Theoretical and Philosophical Reflections
The authors are all specialists in the field of international arbitration and have extensive experience as arbitrators, counsel and participants in international discussions on arbitration policy.
US and EC Antitrust Arbitration
Edited by: Gordon Blanke, Phillip Landolt
ISBN13: 9789041127600
ISBN: 9041127607
To be Published: September 2009
Publisher: Kluwer Law International
Country of Publication: Netherlands
With around 50 chapters dealing with all aspects of antitrust law and competition law written by experts in the field, this book is the first, English-language book on competition law and arbitration covering both US antitrust and EC competition law. The book will provide an indepth examination of all relevant aspects across the field. Rather than just flagging issues, it will provide workable guidance on how practitioners can solve them.
Individual chapters will be written by recognised specialists. The book will be set up to ensure that competition law and arbitration practitioners understand the issues at hand. For example, the economic evidence in the competition law arbitrations chapter will detail the particularities of arbitration vis-a.-vis litigation before courts. This will ensure the practical relevance of the title for both fields.
Lastly, there will be chapters dealing with specific industrial sectors which feature heavily in arbitration and where competition law issues arise frequently: oil and gas, telecoms and pharmaceuticals.
International Arbitration and Mediation: A Practical Guide
by John Savage, Michael McIlwrath
ISBN13: 9789041126108
ISBN: 9041126104
To be Published: October 2009
Publisher: Kluwer Law International
This book guides corporate counsel through all aspects of an arbitration. As arbitration has become the standard for international business, corporate counsel at multi-national companies are required to offer advice on a legal system which differs from their own.
It covers questions such as:
- Do we really need arbitration in our contract (and if so, what arbitration best suits my company and contract)?
- How much will it cost (arbitrators, counsel, experts, etc)?
- How long will it take (not just time tables, but realistically)?
- What can I do to reduce the costs and time?
- What am I looking for when appointing an arbitrator?
- Do I really need to hire outside counsel?
- Do I really need to hire "local counsel"?
- If we are aggrieved, will arbitration allow effective recovery?
- How much will arbitration cost?
- How will arbitration affect the relationship with the opponent and do we care?
- Should we go to court or pursue ADR instead, whether or not required/allowed by contract?
- What about investment treaty remedies?
- If we are natural defendant, should we wait for claimant to sue or take the initiative?
The title will provide International Corporate Counsel with a practical and yet exhaustive overview of international arbitration.
ICSID
Award: Corn Products International, Inc. v. United Mexican States (ICSID Case No. ARB(AF)/04/1)
Outcome of Proceeding Award rendered on August 18, 2009.
New: Swisslion DOO Skopje v. Macedonia, former Yugoslav Republic of (ICSID Case No. ARB/09/16)
Food products company, Registered August 21, 2009
New: Commerce Group Corp. and San Sebastian Gold Mines, Inc. v. Republic of El Salvador (ICSID Case No. ARB/09/17)
Mining concession, Registered August 21, 2009
See http://www.sec.gov/Archives/edgar/data/109757/000010975709000009/frm8k709.txt
Brandes Investment Partners, LP v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/08/3)
Status of Proceeding: Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules (February 02, 2009) available in English and Spanish.
Azurix Corp. v. Argentine Republic (ICSID Case No. ARB/01/12)
Outcome of Proceeding: Decision of the ad hoc Committee on the Application for Annulment issued on September 1, 2009, available on ICSID website in English (Original) and Spanish (Original)
Azurix Corp. v. Argentine Republic (ICSID Case No. ARB/03/30)
Status of Proceeding: Pending (the Respondent files a reply on jurisdiction on September 1, 2009)
Spyridon Roussalis v. Romania (ICSID Case No. ARB/06/1)
Status of Proceeding: Tribunal is reconstituted on September 3, 2009, Bernard HANOTIAU (Belgian) appointed following the resignation of Robert BRINER (Swiss)
Giovanna a Beccara and others v. Argentine Republic (ICSID Case No. ARB/07/5)
Status of Proceeding: Tribunal is reconstituted on September 2, 2009, Pierre TERCIER (Swiss) appointed following the resignation of Robert BRINER (Swiss)
Nations Energy, Inc. and others v. Republic of Panama (ICSID Case No. ARB/06/19)
Status of Proceeding: Pending (the Respondent files a rejoinder on the merits on August 31, 2009)
RSM Production Corporation v. Grenada (ICSID Case No. ARB/05/14)
Ad hoc committee recently constituted: President: Gavan GRIFFITH (Australian) Members: Cecil W. M. ABRAHAM (Malaysian), Campbell McLACHLAN (New Zealand)
Continental Casualty Company v. Argentine Republic (ICSID Case No. ARB/03/9)
Status of Proceeding: Pending (Continental Casualty Company files a request for disclosure of documents on August 31, 2009)
Siemens A.G. v. Argentine Republic (ICSID Case No. ARB/02/8)
Status of Proceeding: Pending (the parties file a request for the discontinuance of the proceeding pursuant to ICSID Arbitration Rule 43(1) on August 12, 2009)
Millicom International Operations B.V. and Sentel GSM S.A. v. Republic of Senegal (ICSID Case No. ARB/08/20)
Status of Proceeding: Pending (the Tribunal holds a telephone conference without the parties concerning various procedural matters on August 27, 2009)
Gustav F W Hamester GmbH & Co KG v. Republic of Ghana (ICSID Case No. ARB/07/24)
Status of Proceeding: Pending (the parties file statements of costs on August 31, 2009)
Saba Fakes v. Republic of Turkey (ICSID Case No. ARB/07/20)
Status of Proceeding: Pending (the Respondent files a rejoinder on jurisdiction on August 31, 2009)
Cementownia "Nowa Huta" S.A. v. Republic of Turkey (ICSID Case No. ARB(AF)/06/2)
Status of Proceeding: Pending (the Tribunal declares the proceeding closed on September 1, 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 issues a procedural order concerning the admissibility of certain claims on August 31, 2009)
Astaldi S.p.A. v. Republic of Honduras (ICSID Case No. ARB/07/32)
Status of Proceeding: Pending (the Respondent files a rejoinder on the merits on August 28, 2009)
Libananco Holdings Co. Limited v. Republic of Turkey (ICSID Case No. ARB/06/8)
Status of Proceeding: Pending (the Tribunal issues a procedural order concerning examination of witnesses on August 31, 2009)
Murphy Exploration and Production Company International v. Republic of Ecuador (ICSID Case No. ARB/08/4)
Status of Proceeding: Pending (the Respondent files a memorial on jurisdiction on August 15, 2009)
Participaciones Inversiones Portuarias SARL v. Gabonese Republic (ICSID Case No. ARB/08/17)
Status of Proceeding: Pending (the Respondent files observations on the proposal for disqualification on August 14, 2009)
Quadrant Pacific Growth Fund L.P. and Canasco Holdings Inc. v. Republic of Costa Rica (ICSID Case No. ARB(AF)/08/1)
Status of Proceeding: Pending (the Claimants file a reply on the merits on August 21, 2009)
ATA Construction, Industrial and Trading Company v. Hashemite Kingdom of Jordan (ICSID Case No. ARB/08/2)
Status of Proceeding: Pending (the Tribunal holds a pre-hearing conference with the parties by telephone on August 20, 2009)
M. Meerapfel Söhne AG v. Central African Republic (ICSID Case No. ARB/07/10)
Status of Proceeding: Pending (the Claimant files a rejoinder on jurisdiction on August 2, 2009)
Waguih Elie George Siag and Clorinda Vecci v. Arab Republic of Egypt (ICSID Case No. ARB/05/15)
Ad hoc Committee Constituted: August 07, 2009
Status of Proceeding: Pending (the proceeding is suspended, pursuant to the parties’ agreement on August 11, 2009)
Enersis S.A. and others v. Argentine Republic (ICSID Case No. ARB/03/21)
Status of Proceeding: Pending (the suspension of the proceeding is further extended, pursuant to the parties' agreement on August 25, 2009)
Siemens A.G. v. Argentine Republic (ICSID Case No. ARB/02/8)
Status of Proceeding: Pending (the parties file a request for the discontinuance of the proceeding pursuant to ICSID Arbitration Rule 43(1) on August 12, 2009)
Enron Creditors Recovery Corporation (formerly Enron Corporation) and Ponderosa Assets, L.P. v. Argentine Republic (ICSID Case No. ARB/01/3)
Status of Proceeding: Pending (Enron Creditors Recovery Corporation and Ponderosa Assets, L.P. file a submission on costs on August 24, 2009)
Impregilo S.p.A. v. Argentine Republic (ICSID Case No. ARB/07/17)
Status of Proceeding: Pending (the Respondent files a counter-memorial on the merits on August 18, 2009)
Elsamex, S.A. v. Republic of Honduras (ICSID Case No. ARB/09/4)
Constitution of Tribunal on August 18, 2009. Sole Arbitrator: Enrique GÓMEZ-PINZÓN (Colombian)
Millicom International Operations B.V. and Sentel GSM S.A. v. Republic of Senegal (ICSID Case No. ARB/08/20)
Status of Proceeding: Pending (the Claimants file a request for provisional measures on August 24, 2009)
ConocoPhillips Company and others v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/07/30)
Status of Proceeding: Pending (the Claimants file a request for production of documents on August 24, 2009)
Railroad Development Corporation v. Republic of Guatemala (ICSID Case No. ARB/07/23)
Status of Proceeding: Pending (the Tribunal issues a procedural order concerning the Respondent’s request to address the objections to jurisdiction as a preliminary question; as a result, the proceeding on the merits is suspended on August 24, 2009)
Mobil Exploration and Development Inc. Suc. Argentina and Mobil Argentina S.A. v. Argentine Republic (ICSID Case No. ARB/04/16)
Status of Proceeding: Pending (the Tribunal issues a decision on the Respondent’s request concerning the procedural calendar on August 24, 2009)
Status of Proceeding: Pending (the Claimants file observations on the Respondent’s request for disclosure of documents on August 26, 2009)
Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines (ICSID Case No. ARB/03/25)
Status of Proceeding: Pending (the Tribunal holds a hearing on annulmentin Washington, D.C. on August 24-26, 2009)
Continental Casualty Company v. Argentine Republic (ICSID Case No. ARB/03/9)
Status of Proceeding: Pending (The Argentine Republic files a response to Continental Casualty Company’s observations of July 16, 2009 on August 21, 2009)