issue #23, week 50. 08 December 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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OGEMID Awards of 2009 - Requests for Nominations (nominate before December 11th)

We have decided to hold once again the "OGEMID - Of The Year" awards, now in its third year. Past winners of the Arbitration Decision of the Year have been CMS v. Argentina (Ad Hoc Committee Decision) in 2007 and Plama v. Bulgaria (Final Award) in 2008.

The categories this year are:

Nominations will close on December 11th, 2009. Following the nomination period, a short list of nominations in all categories will be circulated on OGEMID. All OGEMID participants can then vote for one nomination in each category from the short list. The results of the vote will be announced on OGEMID in January 2010.

Young-OGEMID virtual symposia

Young-OGEMID is a free listserv associated with our Transnational Dispute Management law journal for Students and (junior) Associates - you can apply for your free membership here: www.transnational-dispute-management.com/young-ogemid/

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Recent issues:

NEWS

Lord Woolf calls for arbitration overhaul as he launches new guidance

Dec 03, http://www.lawgazette.co.uk/news/woolf-calls-arbitration-overhaul-he-launches-new-guidance

International arbitration has 'lost its way', the former lord chief justice Lord Woolf (pictured) told the Gazette this week, as he launched a set of guidelines which will build mediation into the arbitration process. Woolf co-chaired an international commission for the Centre for Effective Dispute Resolution (CEDR) to examine how the international arbitration process could be improved, with Swiss lawyer Gabrielle Kaufmann-Kohler. It launched the new guidelines at CEDR's arbitration conference in London last week.

Australia: Bill sets up potential new practice area

Dec 7, http://au.legalbusinessonline.com/news/breaking-news/bill-sets-up-potential-new-practice-area/39099

While most of the legal industry's focus on events in Canberra have centred around the shenanigans of the Liberal Party and the voting down of the CPRS legislation in the Senate, a less publicised legislative push is likely to have a bigger impact on the Australian legal environment - to the point of establishing another onshore practice area for law firms. At least this is the hope for lawyers working in the international arbitration space of amendments to the International Arbitration Act 1974 that were introduced into parliament last week.

Leading Australian Arbitration Body Welcomes Government Reform

Nov 26, http://www.voxy.co.nz/national/leading-australian-arbitration-body-welcomes-government-reform/5/31454

The President of the Australian Centre for Commercial International Arbitration (ACICA), Douglas Jones AM, welcomed amendments to the International Arbitration Act 1974 (Cth) introduced into Parliament by the Australian Attorney General, the Hon Robert McClelland. Professor Jones said these changes will position Australia as a key player in international commercial arbitration. In line with the change to the legal framework, ACICA has streamlined its arbitration rules for dispute resolution.

Ecuador Seeks To Block Chevron

Dec 5, http://online.wsj.com/article/SB10001424052748704342404574575931947490074.html?mod=WSJ_hpp_sections_business

The government of Ecuador asked a U.S. court on Friday to intervene in its long-running environmental battle with oil giant Chevron Corp. The federal court filing is tied to a multi-billion-dollar lawsuit taking place in Ecuador that seeks to hold Chevron responsible for environmental damage allegedly caused by Texaco Inc., which operated there from 1964 to 1990.

Hungarian state hires law firms in dispute with Portuguese bakery firm (ISCID)

Dec 2, http://www.realdeal.hu/20091202/hungarian-state-hires-law-firms-in-dispute-with-portuguese-bakery-firm

Hungary's Finance Minister has signed a 567 million forint (EUR 2m) contract with two law firms to represent the country in a dispute with a Portuguese cake maker. The ministry hired the Hungarian firm of bnt Szabo Tom Burmeister and the Swedish firm of Mannheimer Swartling to advise Hungary on a case filed at the International Centre for Settlement of Investment Disputes (ICSID) by Portugal's Dan Cake.

See "Félmilliárdért vesz jogi tanácsot a Pénzügyminisztérium" at http://www.origo.hu/itthon/20091130-dan-cake-es-magyar-allam-vitaja-jogi-tanacs-567-millioert.html or google Translate: http://translate.google.com/translate?u=http%3A%2F%2Fwww.origo.hu%2Fitthon%2F20091130-dan-cake-es-magyar-allam-vitaja-jogi-tanacs-567-millioert.html

Slovak government announces first expropriation under strategic company law

Dec 2, http://www.spectator.sk/articles/view/37308/10/slovak_government_announces_first_expropriation_under_strategic_company_law.html

The Slovak government has named Novácke chemické závody (NChZ), a bankrupt chemicals firm, as the first company which it intends to take over under the terms of the controversial new Act on Strategic Enterprises. The law gives the state the pre-emptive right to acquire companies in financial difficulty which it deems 'strategic'.

Yukos shareholders win first round in legal battle

Nov 30, http://www.guardian.co.uk/business/2009/nov/30/yukos-shareholders-russian-government-oil

- International tribunal rules in favour of Yukos shareholders; - Compensation of $100bn sought from Russian authorities ... Tim Osborne, the head of investment vehicle GML and biggest shareholder in Yukos, insisted that the ruling was not a "pyrrhic victory". He said that any eventual ruling from the arbitration courts in Yukos shareholders' favour would be enforceable by international law. Governments around the world would not be able to "retry" the case, he said.

A Victory for Holders of Yukos

Dec 1, http://www.nytimes.com/2009/12/02/business/global/02yukos.html?_r=1&dbk

An arbitration panel has ruled that shareholders in the former Yukos oil company, which was disbanded by the Russian government in 2007, are entitled to seek an estimated $100 billion in damages from the Russian government, lawyers for the Yukos shareholders said on Tuesday.

See also http://dealbook.blogs.nytimes.com/2009/12/02/a-victory-for-holders-of-yukos/

LML Ltd starts legal proceedings against Singapore firm

Dec 2, http://www.myiris.com/newsCentre/storyShow.php?fileR=20091202111945203&dir=2009/12/02&secID=livenews

LML announced that it has started legal proceedings against Piaggio & C. SpA, Italy for breach of settlement and clean break agreement dated Nov. 15, 1999 by invoking arbitration under the Singapore International Arbitration Centre (SIAC), Arbitration Rules, Singapore.

Pakistan, Germany sign new Bilateral Investment Treaty, upgrade previous one

Dec 1, http://www.app.com.pk/en_/index.php?option=com_content&task=view&id=90989&Itemid=2

Pakistan and Germany on Tuesday inked a new Bilateral Investment Treaty (BIT) to safeguard and promote their business interests besides sending positive vibes to the international community to invest in the South Asian country. The new BIT marks the golden jubilee of the world's first ever such agreement signed between the two countries on November 25, 1959, after the second world war.

...

According to the details released by the Pakistan embassy in Berlin the salient features of the new Agreement are listed below:

Ablon Group Arbitration Court Verdict

Dec 1, http://production.investis.com/abl/rns/rnsitem?id=1259653141nBw306308a

Ablon Group Limited, a leading real estate owner and developer in Central and Eastern Europe, is pleased to announce that its wholly owned subsidiary, Global Center LLC, has been informed by its lawyer, Dr. Peter Czugler that a verdict issued by the Arbitration Court Attached to the Hungarian Chamber Of Commerce And Industry on 27 November 2009 under case number VB/07181 obliges the Defendant, BVM Épelem Eloregyártó és Szolgáltató Kft to reimburse in 30 days HUF 4,988,000,000 as principal, plus due interest of approximately HUF 3,000,000,000 (approximately 29 million euro in aggregate). Global Center LLC will pay approximately 30% of amounts received pursuant to this verdict in related costs.

Global Center LLC was established to execute the "High Tech Park" development project in the 11th district of Budapest.

As it can be read from the verdict, the Plaintiff, Global Center LLC, purchased in the form of co-ownership, more than 80,000 m2 from the Defendant, to realise these development plans, well-known by the Defendant. According to the construction regulations in force the division in kind of the plot - out of more than 170,000 m2 - was the precondition of acquiring any construction permit. As the verdict says - although the defendant was legally obliged to refrain from any action which might result in the delay of construction - the Defendant illegally delayed the division of the plots for several years.

Although the Plaintiff did all the legal actions to mitigate damages, the execution of the division was only ordered by the Supreme Court in late November 2006, and the first construction permit was issued in late December 2006. The sum to be reimbursed by the Defendant on the verdict was verified by an expert opinion, prepared by a member of the Hungarian State Expert Chamber introduced by the Court.

The Defendant is one of the largest concrete profile manufacturing Companies in Hungary, specialised on significant infrastructure projects (e.g. underground and highway construction).

Astapov: Ukraine could lose in case on expropriation of gas

Dec 07, http://steelguru.com/news/index/2009/12/07/MTIzNzkw/Ukraine_could_lose_in_case_on_expropriation_of_gas_-_Mr_Astapov.html

According to Mr Andriy Astapov the managing partner of the AstapovLawyers Law Firm the likelihood of a ruling in favor of Centragas Beteiligungs Holding AG which is under control of Dmytro Firtash in a case concerning the ownership of 11 billion cubic meters of gas which was allegedly expropriated from RUE by Naftogaz Ukrainy is very high. He was commenting on a report by Centragas Beteiligungs Holding AG on its notification to the Ukrainian government of the start of litigation in accordance with the terms of the Energy Charter on the expropriation of 11 billion cubic meters of gas from RUE by Naftogaz Ukrainy. Mr Astapov said "We believe that taking into account the agreement on the Energy Charter which was signed in 1994 there is a high likelihood that the arbitration court will."

Claims of Austrian centragas to Ukraine regarding expropriation of 11 billion cubic meters of gas illogical says Dubyna

Nov 27, http://www.kyivpost.com/news/nation/detail/53760/

Board chairman of the Naftohaz Ukrainy national joint-stock company Oleh Dubyna considers as illogical claims of the Centragas Beteiligungs Holding AG, Austria, which owns the 50-percent stake in RosUkrEnergo, Switzerland, to Ukraine regarding the expropriation of 11 billion cubic meters of gas earlier belonging to RosUkrEnergo, he told a press conference. "The Naftohaz Ukrainy national joint-stock company has acquired this gas from Gazprom, thus, RosUkrEnergo can address only its partner, but not Ukraine," Dubyna said.

See also "Gas middleman says Ukraine expropriated its gas" http://uk.reuters.com/article/idUKGEE5AP28Z20091126

Shareholders of a gas supply middleman that lost out after a January row between Ukraine and Russia said on Thursday Kiev had stolen 11 billion cubic metres of gas and demanded answers before pursuing a claim.

Centragas Beteiligungs accuses Naftogaz of violating Energy Charter

Nov 17, http://www.ukrainianjournal.com/index.php?w=article&id=9457

Centragas Beteiligungs Holding AG (Vienna), which is under the control of Dmytro Firtash, has accused Ukraine of violating an agreement on the Energy Charter through the alleged expropriation of 11 billion cubic meters of gas in January-April by Naftogaz Ukrayiny.

First Deputy Justice Minister Yevhen Korneichuk said that Centragas Beteiligungs, co-founder of RosUkrEnergo, the alleged owner of the gas, has asked "to sign an amicable agreement with Ukraine according to Article 26 of the agreement on the Energy Charter."

(Note: Full access to the Ukrainian Journal requires a subscription)

RUE may lay claim to 11bln cu. m. of gas against Gazprom

Nov 27, http://www.nrcu.gov.ua/index.php?id=148&listid=105573

RosUkrEnergo (RUE) may lay claims to 11 billion cubic meters of gas kept in the Ukrainian underground gas storages against its partner - Gazprom, NJSC Naftogaz of Ukraine CEO Oleh Dubyna has told the press on Friday commenting on RUE's appeal to the international arbitration regarding the establishment of proprietary rights to 11 billion cu. m. of natural gas in the Ukrainian gas storages transferred to Naftogaz in 2009.

Canada: ERCB Dispute Resolution Program Achieves 89 Per Cent Success Rate

Nov 27, http://www.ercb.ca/portal/server.pt/gateway/PTARGS_0_0_303_263_0_43/http%3B/ercbContent/publishedcontent/publish/ercb_home/news/news_releases/2009/nr2009_30.aspx

The Energy Resources Conservation Board (ERCB) has released the 2008 Appropriate Dispute Resolution Review, which highlights the success rate of the ERCB's Appropriate Dispute Resolution (ADR) program.

ADR is used by affected parties when concerns and objections persist following negotiations between landowners and companies or occasionally between companies themselves, known as company-to-company objections.

Of the 44,000 applications received by the ERCB in 2008, there were 2,061 outstanding objections from landowners and 211 company-to-company objections.

Annual report available at http://www.ercb.ca/docs/documents/reports/ADRAnnualReport-2008.pdf

London arbitrators push further into India with new chapter

Nov 27, http://www.legallyindia.com/20091127313/The-Bar-and-Bench/London-arbitrators-push-further-into-India-with-new-chapter

The London Chartered Institute of Arbitrators (CIArb) set up its India chapter in Delhi yesterday, following the Delhi High Court setting up an arbitration cell last week and the London Court of International Arbitration (LCIA) move to Delhi.

Farm Invasions Illegal - SA

Nov 28, http://allafrica.com/stories/200911290008.html

THE South African government has accepted that the ongoing land invasions are unlawful, and that rulings of the Sadc Tribunal were binding. This followed a High Court application by farmers' rights organisation Agriforum, which filed an urgent application seeking to stop the signing of the Bilateral Investment Promotion and Protection Agreement (Bippa) on Friday. Agriforum represents more than 200 South African farmers in Zimbabwe and some of them have been forced to leave the country.

Bippa Goes Against SA Law - Legal Consultants

Nov 26, http://allafrica.com/stories/200911270894.html

SOUTH African legal consultants have said if the government of South Africa proceeds to conclude the proposed Bilateral Investment Promotion and Protection Agreement (Bippa) with the government of Zimbabwe thereby immunising Zimbabwe from its international law liabilities it would be going against South African law. By signing the Bippa -- aimed at providing security of tenure to South African investments in Zimbabwe but which expressly excludes past claims arising from Zimbabwe's post-2000 land seizures -- the South African government would act contrary to the principles of the Sadc Treaty and other international instruments, and in violation of the South African constitution, and may in law be interdicted against doing so, the consultants, Mssrs Jeremy Gauntlett and FB Pelser said in a legal opinion published this week.

See also "Opinion: SADC tribunal ruling is binding on Zim govt" http://www.thezimbabwean.co.uk/2009092524919/opinion-analysis/opinion-sadc-tribunal-ruling-is-binding-on-zim-govt-jeremy-gauntlett.html

AfriForum to court over SA-Zim deal

Nov 25, http://www.citizen.co.za/index/article.aspx?pDesc=111136,1,22

A bilateral investment promotion and protection agreement between South Africa and Zimbabwe is unconstitutional and will be challenged in court, AfriForum said on Wednesday. "It excludes people farmers historically deprived of property as a result of a compulsory acquisition, of land expropriation," the organisation's legal representative Willie Spies told a press briefing in Pretoria.

The Gassi Touil arbitration proceeding is resolved without compensation for any party

Nov 27, http://www.repsol.com/es_en/corporacion/prensa/notas-de-prensa/ultimas-notas/27112009-gassi-touil.aspx

The arbitration award announced today resolved the dispute between Repsol-Gas Natural and Sonatrach over the termination of the agreement for the Gassi Touil project which had been awarded in 2004.

The arbitration tribunal has declared the agreement terminated in accordance with its terms, without either party having to compensate the other for the termination.

The award also orders Sonatrach to buy the Spanish companies' share in the joint venture in charge of the project's liquefaction process for a price similar to the consortium's current liquid assets.

The award does not include reimbursements for investments made by Repsol and Gas Natural in this project. Repsol will write off the relevant assets from its financial statements, with a net impact for the Group of approximately 105 million euros.

The outcome of this award will not have a significant impact on the company's results.

This dispute began in July 2007 and its resolution does not affect the ordinary course of business of Repsol and Gas Natural in Algeria.

Nevertheless, both companies are studying the content of the arbitration award to determine if any other action related to this process is necessary.

See also "Gassi ruling will not affect Algerian operations says Repsol" http://af.reuters.com/article/investingNews/idAFJOE5AQ0AP20091127

Induyco opposes to the payment of the award to Lectra

Nov 30, http://www.lectra.com/en/lib/php/download.php?file=/binaries/Press_Release_271109_tcm31-135189.pdf&name=Press_Release_271109.pdf&lng=en&space=press&type=en_press_press_releases_index

On October 28, 2009, the Secretariat of the International Court of Arbitration notified an award to Lectra and Induyco in an arbitration initiated by Lectra in 2005 against Induyco, the former shareholder of Investrónica Sistemas. The arbitration arose out of Lectra's acquisition of Investrónica Sistemas in 2004. In the award, the international arbitral tribunal awarded Lectra €21.9 million plus interest (see press release published on October 28, 2009).

Following notification of the award, Lectra called on two first demand guarantees that were provided by Induyco pursuant to the terms of the share purchase agreement and requested Induyco to pay the full amount of the award plus interest.

Induyco has since obtained in Spain an interim order temporarily suspending operation of the demand guarantees based on a claim that Lectra must recognize and enforce the award in Spain before it can recover any amounts under the guarantees. Induyco has also taken steps in England (where the arbitration took place) to challenge the award. Lectra has not yet been served with a copy of the writ and claim in either the English or Spanish court actions on the merits.

Lectra considers both court actions to be entirely without merit and intends to mount an aggressive and vigorous defense of its rights and recovery of the amounts due to it under the award.

Ventana Gold announces a dispute with Columbian holder of its mineral rights (La Bodega Agreement)

Nov 26, http://cnrp.marketwire.com/client/ventana_gold/release.jsp?actionFor=1082408&releaseSeq=0&year=2009

Ventana Gold Corp. has been advised that Sociedad Minera La Bodega Limitada, the owner of the mineral rights to the La Bodega property in Colombia, is seeking an arbitration in relation to an option agreement with CVS Explorations Ltda., Ventana's 100%-owned subsidiary. The Option Agreement provides for CVS to acquire the La Bodega property mineral rights through a series of staged payments as detailed below.

The request for arbitration is an attempt by the Vendor to invalidate the Option Agreement and have the property returned to the Vendor. CVS has operated under the Option Agreement for almost four years without any performance default or allegation of default. The Vendor's request for arbitration is based on arguments that the Option Agreement fails to comply with applicable Colombian law and the Vendor has refused to abide by the terms of the Option Agreement.

Ventana has well respected Colombian legal counsel who prepared the Option Agreement. This counsel, together with counsel from one of Colombia's largest and most respected legal firms, from whom Ventana has sought a second opinion, has advised Ventana that the Vendor's argument that the Option Agreement fails to comply with applicable Colombian law is wholly without merit. Both sets of counsel fully expect the Option Agreement to be upheld as valid and enforceable by the arbitration panel. Ventana will exercise all means to protect its rights under the Option Agreement.

Ventana President and CEO Steve Orr said: "We believe this is an attempt to obtain more money for the mineral rights now that we have substantially increased the value of the property through our exploration success. There have been no changes to the mining laws and there are no government agencies involved in the dispute. We are confident in the integrity of the regulatory system and the application of justice in Colombia. Ventana has all the necessary permits in place to continue exploration and technical work on the property and the Vendor cannot legally stop Ventana from doing further work on the property."

Ventana's initial 43-101 resource estimate on the La Bodega property is due in the first quarter of next year and the Company has a scoping study under way, with completion expected mid-2010. This work remains on schedule.

Option Agreement

Sociedad Minera La Bodega Limitada is a private company controlled by certain members of the Gelvez family of Bucaramanga, Colombia, and is the title holder to Concession Contract #3451 (the La Bodega property) granted by the Colombian mining authority. CVS entered into the Option Agreement in February 2006 which calls for a series of staged payments, as follows:

                                    Cash ($US)   Shares
On Signing - February 2006 (Paid)   $ 300,000    -
February 8, 2007 (Paid)             $ 400,000    250,000
February 8, 2008 (Paid)             $ 500,000    250,000
February 8, 2009 (Paid)             $ 2,800,000  250,000
February 8, 2010 (Payment attempted Nov. 20, 2009)
                                    $ 3,000,000  250,000
                                    $ 7,000,000  1,000,000

Ventana has met all the conditions of the Option Agreement and the first four payments have been made. The final payment payable by February 8, 2010 was attempted (the Option Agreement allows for CVS to exercise the option in full at any time prior to the date of the final payment) but the Vendor has refused to accept the payment, which is a breach of the Option Agreement.

Arbitration Process

A claim has been filed by CVS with the Chamber of Commerce in Bucaramanga, Colombia for breach of the obligation by the Vendor to accept payment and the Chamber is now in the process of establishing the arbitration panel. Once the arbitrators have been chosen a settlement hearing will be held and arbitration costs established. The parties then have 10 days to deposit the assessed cost. If neither party pays, the arbitration is terminated and can be converted to a lawsuit in the courts. Otherwise it proceeds to hearings to collect and present evidence. Once under way, the arbitration cannot be stopped unless both parties agree, and the final decision is binding. It can be appealed before a Colombian high court based on a failure of procedure.

Ventana's advice, and that of Colombian counsel, is that the Vendor's claim is completely without merit and Ventana is confident it will prevail.

Hyundai Heavy sues IPIC over Oilbank ruling

Dec 3, http://www.koreaherald.co.kr/NEWKHSITE/data/html_dir/2009/12/03/200912030088.asp

Korea's Hyundai Heavy Industries Co. said Thursday that it has filed a suit against International Petroleum Investment Co. to enforce an international ruling that confirms the shipbuilder's right to buy back shares of Hyundai Oilbank Co., according to Yonhap News.

Hyundai Heavy says will take legal action against IPIC for Oilbank shares

Nov 27, http://www.zibb.com/article/5695491/Hyundai+Heavy+says+will+take+legal+action+against+IPIC+for+Oilbank+shares

Hyundai Heavy Industries Co. said Thursday it will take legal action against an Abu Dhabi-based firm that is refusing to sell shares in an oil refiner the South Korean shipbuilder wants to take over. International Petroleum Investment Co. (IPIC), operated by the Abu Dhabi government, has rejected the validity of an International Chamber of Commerce decision recognizing Hyundai Heavy's right to buy Hyundai Oilbank Co.

IPIC said some key factual and legal conclusions of the ruling are incorrect and that it is not enforceable in South Korea, according to Hyundai Heavy.

Hong Kong offers arbitration option

Nov 27, http://vietnamnews.vnagency.com.vn/showarticle.php?num=02ECO271109

Hong Kong's Secretary for Justice, Wong Yan Lung began a two-day visit to Ha Noi on Monday to attend the ASEAN-China Conference of Prosecutors General as well as to promote Hong Kong as a regional dispute resolution centre. Viet Nam News reporter Mai Huong spoke to Wong about the growing demand for arbitration.

Brewer Modelo arbitration vs Anheuser continues

Nov 25, http://www.reuters.com/article/rbssConsumerGoodsAndRetailNews/idUSN2536151520091125

Mexican brewer Grupo Modelo is continuing its U.S. arbitration case against partner Anheuser-Busch, a process that could come to an end early next year, daily El Universal said on Wednesday.

Coalcorp Settles Arbitrations with Glencore and Dispute with Prodeco

Nov 24, http://micro.newswire.ca/release.cgi?rkey=1711244654&view=97762-0&Start=0&htm=0

Coalcorp Mining Inc. announced that Coalcorp and its indirect wholly owned subsidiary Compania Carbones del Cesar ("Cesar") have entered into a Deed of Settlement and Release with Glencore International A.G. ("Glencore") in connection with the current arbitrations in respect of the sale and purchase of coal agreements known as Contract 7927 and Contract 15109. Coalcorp, Cesar and Glencore have agreed, to a full and final settlement of any and all claims and counterclaims in the arbitrations with respect to these two coal Contracts, without any admission of liability, on the terms set out in the Deed of Settlement of Release.

Coalcorp and Prodeco have also resolved the disputes in connection with the Prodeco IV Contract that were previously press released by Coalcorp on October 27, 2009 and October 28, 2009. Coalcorp and Prodeco have entered into a settlement agreement which provides that all differences existing amongst the parties in connection with the Prodeco IV Contract as of the date hereof are fully settled without admissions of liability and that performance of the Prodeco IV contract shall continue on a FOT basis.

British Airways Cleared of Tax Evasion Charges by Arbitration Court

Nov 24, http://www.sptimes.ru/index.php?action_id=2&story_id=30386

The Supreme Arbitration Court cleared British Airways of tax evasion Tuesday, in a ruling that could have repercussions for foreign airlines operating in Russia. The Federal Tax Service accused the airline of not paying 716,044 rubles ($24,700) in taxes taking into account differences between the exchange rate that the company used when it converted its income into pounds from 2004 to 2006 and the official Central Bank rate.

National Chamber of Commerce of Sri Lanka to promote business arbitration

Nov 25, http://www.island.lk/2009/11/25/business8.html

Sri Lanka has agreed to follow the United Nations Commission of International Trade Law for purposes of arbitration. This is also followed in 130 other countries.

However the benefit of a faster, cost effective and confidential system has not been marketed sufficiently.

The National Chamber of Commerce (NCCSL) has initiated a programme to educate the corporate sector of benefits from this system which will provide maximum benefits for two or more Parties who are facing issues connected to business.

Australia: Talks go on as BBP tries to juggle its way out of a tight corner

Dec 7, http://www.smh.com.au/business/talks-go-on-as-bbp-tries-to-juggle-its-way-out-of-a-tight-corner-20091206-kctu.html

IT HAS been nearly four weeks since Babcock & Brown Power learnt of an arbitration decision on a major gas contract in Western Australia, and there has been little in the way of a public update since.

Woodside confirms positive determination on Alinta arbitration: interim award delivered but confidential

Nov 24, http://au.news.yahoo.com/thewest/business/a/-/wa/6510017/woodside-confirms-positive-determination-on-gas-arbitration/

Woodside Petroleum has indicated that arbitration of a dispute with Babcock & Brown Power's Alinta gas retailing business regarding future gas prices has favoured the North West Shelf energy producers.

Babcock & Brown Power's stapled securities have been suspended from trading since November 13 as the arbitration progessed:

Babcock & Brown Power (ASX:BBP) advises that its discussions with the North West Shelf gas sellers and its syndicate of banks in response to the interim award under the gas contract arbitration in Western Australia are still ongoing. BBP is continuing with its process of engaging with the relevant parties to ascertain a full understanding of the implications of the interim award. Accordingly, BBP's voluntary suspension from quotation will continue until such time as BBP is in a position to make an announcement in relation to those discussions. This is expected to be during the week commencing 23 November 2009. Source: http://www.bbpower.com/media/419478/789779%20(2)_update%20on%20voluntary%20suspension_19%20nov%202009.pdf

DRC says Canada mining hitch holds up debt deal

Nov 24, http://www.resourceintelligence.net/drc-says-canada-mining-hitch-holds-up-debt-deal/4183

The Democratic Republic of Congo on Tuesday accused Canada of holding up progress toward rescheduling its foreign debt in a dispute over a canceled mining contract in the Central African country. The International Monetary Fund (IMF) said this month the nation must make arrangements on the rescheduling of its debt with the Paris Club of creditor nations before it could qualify to enter a global debt relief program.

JAMS Proposes First-Ever International Mediator-in-Reserve Policy

Nov 23, http://www.jamsadr.com/jams-proposes-first-ever-international-mediator-in-reserve-policy-11-23-2009/

JAMS, The Resolution Experts, today circulated for comment the first-ever international Mediator-in-Reserve policy, which will streamline the transition to mediation for parties involved in arbitration.

The appointment of a Mediator-in-Reserve would allow parties to pre-select a mediator at the beginning of an international arbitration. The mediator would then only be used if at some point during arbitration both parties decide to settle the matter through mediation instead.

"When issues arise that threaten to slow down or derail the arbitration process, parties may decide to save time and money by switching to mediation," said Jay Welsh, JAMS Executive Vice President and General Counsel. "Appointing a mediator ahead of time will enable those involved to move quickly and efficiently once they decide to mediate."

Adopting such a policy would also allow the parties to consider mediation without the intervention of the arbitrator. This will ensure the parties do not feel coerced into mediation and will also enable the arbitrator to avoid ex parte communications with the parties, thereby preserving his or her neutrality if the matter does not settle.

JAMS is seeking public comments on the following proposed policy from now until January 1, 2010. Please email your comments to Robert Davidson or Kimberly Taylor (visit the page above for the email addresses)

Proposed Policy

Within one week of the commencement of an international arbitration at JAMS, a suggested list of mediators will be sent to the parties. The parties will be encouraged to select a mediator from the list who shall be placed in reserve during the pendency of the arbitration. The mediator so selected (the "Mediator-in-Reserve") shall be available to the parties to assist in settlement negotiations in the event that, at any time in the course of the arbitration proceedings, the parties all agree to enlist the mediator's assistance. There shall be no charge to the parties for the appointment of the Mediator-in-Reserve and the parties shall not incur fees unless and until they choose to utilize the mediator's services.

The Mediator-in-Reserve shall not be informed of the parties' selection until and unless the parties decide to request the mediator's services. The parties will not be bound to use the Mediator-in-Reserve and may, at any time, mutually select another mediator to assist in their settlement discussions.

The arbitrator(s) in the proceeding shall have no knowledge of the identity of the Mediator-in-Reserve, or whether the parties may have engaged her or his services at any point in the arbitration proceedings.

UK: English High Court Refuses to Enforce a Canadian Arbitration Award Which Failed to Give Effect to Mandatory EU Regulations

Nov 19, http://www.insurereinsure.com/BlogHome.aspx?entry=2073

In Accentuate Limited v Asigra Inc (A company incorporated under the laws of Canada) [2009] EWHC 265, the English Court was asked to overturn the earlier decision of a District Judge which set aside an order giving the English claimant, Accentuate, leave to serve the Canadian defendant, Asigra, outside the jurisdiction and which granted a stay of proceedings.

India's first arbitration centre inaugurated in Delhi

Nov 25, http://in.news.yahoo.com/43/20091125/812/tnl-india-s-first-arbitration-centre-ina.html

Chief Justice of India K.G. Balakrishnan Wednesday inaugurated country's first arbitration centre in the capital for the speedy disposal of cases.

First Indian Arbitration centre to deal with corporate disputes

Nov 22, http://www.ptinews.com/news/388369_Arbitration-centre-to-deal-with-corporate-disputes

India is all set to have a modern arbitration centre on the models of world-acclaimed reconciliation units at Singapore and London for quick justice delivery in corporate litigations. The arbitration centre, a brainchild of Chief Justice of the Delhi High Court A P Shah, will match the standards of Singapore International Arbitration Centre and London Court of International Arbitration Centre. It is not only aimed at reducing the burden on the judiciary but also providing time-bound disposal of corporate disputes.

The centre would operate from Delhi High Court premises under its supervision, an official statement said. The centre will be inaugurated Nov 25.

Croatia ratifies arbitration border agreement with Slovenia

Nov 21, http://www.setimes.com/cocoon/setimes/xhtml/en_GB/newsbriefs/setimes/newsbriefs/2009/11/20/nb-07

Parliament ratified the arbitration border agreement Friday (November 20th) aimed at resolving the long-standing border dispute with Slovenia. Ratifications required a two-thirds majority. In the end, most representatives of the main opposition Social Democratic Party supported the agreement, despite some reservations.

Macedonia Suggests Croatia-Slovenia Model

Nov 11, http://www.balkaninsight.com/en/main/news/23585/

The "name" row between neighboring Macedonia and Greece could be settled using the recent Croatia-Slovenia model, through international arbitration, Macedonia's foreign minister Antonio Milososki said Wednesday.

Turkey gives Israel new 'deadline' for Herons delivery

http://en.trend.az/regions/met/turkey/1586142.html

Rejecting a news report suggesting that Turkey has cancelled a deal with Israel for purchasing unmanned aerial vehicles, or UAVs, Turkish Defense Minister Vecdi Gönül, has announced that Turkey has given Israeli contractors 50 days to fulfill the long-delayed deal for the delivery of the Israeli-made surveillance drones, known as Herons, Today's Zaman reported.

...

"Turkey plans to impose a heavy monetary penalty on Israel for the delay. If this country refuses to comply with the penalty, then Turkey will head to the [ICC] International Court of Arbitration," a senior official from the Undersecretariat for the Defense Industry (SSM) told Today's Zaman last month.

Pac Rim Cayman: CAFTA Proceedings Begin as Tribunal Constituted

Nov 19, http://www.pacrim-mining.com/s/News.asp?ReportID=372918

Pac Rim Cayman, LLC, a Nevada corporation and a wholly-owned subsidiary of Pacific Rim Mining Corp. ("Pacific Rim") has received notice from the International Centre for Settlement of Investment Disputes ("ICSID") that the three nominations for arbitrators in the Company's action under the Central America-Dominican Republic-United States of America Free Trade Agreement ("CAFTA") and the El Salvadoran Investment Law have all accepted their appointments. As a result, the Arbitral Tribunal is therefore deemed under ICSID Arbitration Rule 6 to have been constituted. For additional information about Pac Rim's claims against the Government of El Salvador see Pacific Rim news release #-09-03 dated April 30, 2009 or its 2009 Annual Report.

"This is a key milestone in Pac Rim's claim as the arbitration process will now get fully underway", states Tom Shrake, CEO. "The next step is for the Arbitral Tribunal to convene a hearing to set out the further procedures in the arbitration. The shareholders of Pacific Rim can rest assured that although the arbitration will proceed as quickly as possible, we continue to maintain a dialogue with the Government of El Salvador to find a resolution to our dispute to the benefit of both parties. Pacific Rim has worked with both local residents and their elected officials, and the Government of El Salvador, to design a mine plan for the El Dorado deposits that sets new environmental protection standards for Latin America. We are committed to responsible mining that can put the people of Cabanas back to work in these extremely difficult economic times. El Salvador has tremendous gold wealth that can be translated to jobs and economic prosperity in the poorest region of the country in a safe and responsible manner".

Sierra Leone Government Markets Country's Potential to Investors in London

Nov 19, http://www.news.sl/drwebsite/publish/article_200513697.shtml

... President Koroma said in addition to the protections against expropriation already enshrined in the Investment Promotion Act of 2004, his government has signed Bilateral Investment Treaties and Double Taxation Treaties with other countries and is able and willing to do so as the circumstances demand. "I am proud to say that Sierra Leone is now one of the top five countries in Sub-Saharan Africa when it comes to investor protection and the ease of starting a business," the President said.

He explained further that his government has enacted a new Minerals Act to ensure greater transparency and a fairer deal for investors and communities.

Bahama: Debate on the Arbitration Bill

Nov 16, http://www.thebahamasweekly.com/publish/bahamian-politics/Mitchell_On_Arbitration_Bill8475.shtml

The Arbitration Bill seeks to update legislation that has been on the books in The Bahamas since 1889.

WTO Issues Arbitration Rule in Brazilian Cotton Case: No win, but no loss

Nov 18, http://southeastfarmpress.com/cotton/wto-cotton-1118/

The World Trade Organization arbitration report on the infamous Brazilian cotton case says the U.S. will have to forfeit $300 million in export trade to the South American country.

PODCASTS

IDN 81 - NBC Universal - Disputes in the International Entertainment Industries

Disputes at a television network attract a great deal of attention, and need a great deal of conflict management skills. Not to mention cutting-edge tools. Two top lawyers at NBC Universal Inc. talk discovery, arbitration, mediation, and the nature of business disputes in the first of two parts.

IDN 82: NBC Universal--Part 2, Mediating Disputes in the Film and Television Industries (Nov. 27)

Part 2 of a discussion on domestic and international disputes in the entertainment field with NBC Universal attorneys, Susan E. Weiner, executive vice president and deputy general counsel, and David L. Burg, who is senior vice president for litigation.

EVENTS

Open dialogue discusses details of commercial arbitration (Dubai)

Nov 18, http://www.albawaba.com/en/countries/UAE/257168

An initiative of Dubai Chamber of Commerce & Industry, the Dubai International Arbitration Center (DIAC) organized an open dialogue at the Chamber premises on Wednesday. This second meeting of the year came after the success of the first roundtable discussion held in February and provided an opportunity for the participants to discuss issues directly with the Executive Committee of the Center.

Addressed by speakers including Professor Martin Hunter, Chairman, DIAC Board of Trustees, Dr Nael Bunni, Chairman, DIAC Executive Committee and its members Michael E Schneider, Dr Fathi Kemicha, Dr Tarek Fouad A. Riad, and Dr Hussam Talhuni, Director, DIAC, and was attended by arbitrators, practitioners, in-house counsels, litigators, judges, lawyers, government officials and personnel involved in dispute resolutions.

Investment Treaty Law and Arbitration: Evolution and Revolution in Substance and Procedure, 19-20 February 2010 [pdf]

http://www.usyd.edu.au/news/law/457.html?eventcategoryid=37&eventid=4307

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.

Full programme http://www.law.usyd.edu.au/events/2010/Feb/ITAbrochure_Feb10.pdf

Fourth Annual Investment Treaty Arbitration Conference: A Debate and Discussion Investment Arbitration in the Asia-Pacific Region, Washington, D.C. 30 April 2010

The fourth annual conference continues the tradition of focusing on four topical and pressing issues – by establishing a dialogue between some of the brightest new stars in the field and some of its most seasoned practitioners. Eight up-and-comers are preparing papers on four of the most controversial and important issues in international investment law today. On April 30th our young authors will pair up to defend their positions before a panel of arbitrators, arbitration specialists and experts in international investment law. The discussion and debate that will follow is sure to be of tremendous value to the international business lawyer, litigation specialist or trade and investment law policy expert.

Sixth Annual Leading Arbitrators' Symposium on the Conduct of International Arbitration - Vienna, Austria 29 March 2010

This will be an opportunity for arbitrators and arbitration counsel to hear the World's leading international arbitrators discuss in very practical terms how they approach each stage of an international arbitration. The first three sessions will each address one stage of the arbitral process: pre-hearing activities, the hearing itself, and the process of getting from the hearing to a final award. The final session will involve a review of current "hot topics" and trends in international arbitration from around the World.

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.

The Most-Favoured-Nation Treatment of Substantive Rights October 22, 2010

http://www.arbitration-adr.org/activities/?p=conference&a=upcoming

Brussels, Belgium - The operation and effect of the Most-Favored-Nation (MFN) clause has recently been the subject of considerable attention in the context of procedural rights. However, few arbitral tribunals have focused on the MFN clause's operation vis-à-vis substantive rights....

MOVES / JOBS

ICSID job: Senior Counsel, closing date December 15th 2009

http://bit.ly/5aEdyq

LMAA: Appointment of Deputy Honorary Secretary

Nov 26, http://www.lmaa.org.uk/event.aspx?pkNewsEventID=8509d1db-8e0f-4595-ad96-caec6dd76bd3

The LMAA is delighted to announce the appointment of Ian Gaunt as the Deputy Honorary Secretary of the LMAA. Ian will take over from Simon Gault as Honorary Secretary during the course of next year.

BOOKS

Arbitration in Sweden: Law and Practice of International Commercial Arbitration

Professor Dr. Kaj Hobér
ISBN13: 9780199218523
ISBN: 0199218528
March 2010, Publisher: Oxford University Press

This title covers all aspects of international commercial arbitration in Sweden, long a leading arbitral centre. Combining a practical approach with scholarly analysis, it provides the reader with an in-depth knowledge about Swedish arbitration law as applied in international arbitrations.

Contents:

  1. Introduction
  2. International Aspects and State Attitudes
  3. The Arbitration Agreement
  4. The Arbitration Proceedings
  5. Void and Challengeable Awards
  6. Enforcement of Swedish Awards
  7. Enforcement of Foreign Awards

Appendices Swedish Arbitration Act (English translation)

Rules of the Stockholm Chamber of Commerce

Bias Challenges in International Arbitration: The Need for a Real Danger Test

Sam Luttrell
ISBN13: 9789041131911
ISBN: 9041131914
Publisher: Kluwer Law International

Private international actors go to arbitration to avoid adjudicatory risks, especially the risk of bias. It follows that safeguarding procedural fairness is a key concern in arbitral processes, and that exposing actual bias is crucial. However, evidence from both case law and institutional statistics shows that wily parties are willing to abuse procedural fairness and cry bias as a way of delaying proceedings and escaping enforcement, and that the frequency of such spurious challenges is increasing.

This insightful book offers a proposal, solidly grounded in legal principle and precedent, for how the arbitration community should respond to this threat. The author shows how 'dirty' challenge tactics are made viable primarily by the prevalence of a judicially derived test for bias which focuses on appearances, rather than facts. He argues that the most commonly used test of bias, the 'reasonable apprehension' test, makes it easy to allege a lack of impartiality and independence. He shows that the 'real danger' test, derived from the decision of the House of Lords in Gough, has a much higher threshold, and has the additional advantage of making the arbitral award stronger at the all-important enforcement stage.

In the course of the presentation the book analyzes, in extraordinary depth, such issues as the following:

In a broad comparative survey of the law of bias challenges in international commercial arbitration covering all leading states, the author examines various municipal laws to determine their tolerance for a 'real danger' clause in commercial contracts. His analysis, replete with case summaries and material facts, provides a strong scaffolding for his thesis, and also probes the causes of the increased rate of bias challenge.

The need for a uniform test in this area is made very convincing by this original study. Arbitrators and other interested professionals and academics will find it of unusual value and interest, and corporate counsel will find much to consider in the use of the 'real danger' clause.

Contents:

  1. Bias in International Commercial Arbitration.
  2. Lord Hewart's Ghost (England).
  3. Varying Approaches in Europe.
  4. The American Way.
  5. Competing Tests in the Asia Pacific.
  6. Rules of Bias in the Lex Mercatoria.
  7. Bias Challenges in Investor-State Arbitration.
  8. Conclusion.

Note: Also see the extensive TDM Special Issue on Arbitrator Bias prepared by Sophie Nappert (3 Verulam Buildings)

ICSID

EVN AG v. Macedonia, former Yugoslav Republic of (ICSID Case No. ARB/09/10)

Status of Proceeding: Pending (the Tribunal holds a first session at The Hague on December 4, 2009)

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

Status of Proceeding: Pending (the arbitrator furnishes explanations in regard to the proposal for disqualification on September 22, 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 organization of the hearing on jurisdiction on December 1, 2009)

Saba Fakes v. Republic of Turkey (ICSID Case No. ARB/07/20)

Status of Proceeding: Pending (the parties file submissions on costs on December 2, 2009)

Electrabel S.A. v. Republic of Hungary (ICSID Case No. ARB/07/19)

Status of Proceeding: Pending (the Tribunal holds a procedural session with the parties by telephone conference on December 4, 2009)

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

Status of Proceeding: Pending (the Tribunal issues a procedural order concerning the organization of the hearing on jurisdiction and admissibility on December 1, 2009)

Corn Products International, Inc. v. United Mexican States (ICSID Case No. ARB(AF)/04/1)

Status of Proceeding: Pending (the Claimant files observations on the Respondent’s response of November 25, 2009 on December 4, 2009)

Duke Energy International Peru Investments No. 1 Ltd. v. Republic of Peru (ICSID Case No. ARB/03/28)

Status of Proceeding: Pending (The Republic of Peru files a memorial on annulment on November 20, 2009)

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

Status of Proceeding: Pending (the Tribunal issues a decision on production of documents on November 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 Claimants file a memorial on the merits on November 27, 2009)

Piero Foresti, Laura de Carli and others v. Republic of South Africa (ICSID Case No. ARB(AF)/07/1)

Status of Proceeding: Pending (the Respondent informs the Centre that it objects to the Claimants’request for the discontinuance of the proceeding and files an application for a default award on November 20, 2009)

Alapli Elektrik B.V. v. Republic of Turkey (ICSID Case No. ARB/08/13)

Status of Proceeding: Pending (the Tribunal issues a procedural order concerning the Respondent’s request for production of documents on October 21, 2009)

Spyridon Roussalis v. Romania (ICSID Case No. ARB/06/1)

Status of Proceeding: Pending (the Claimant files a rejoinder to the Respondent’s counter-claim on November 13, 2009)

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

Outcome of Proceeding: The Tribunal issues a decision on the application for the revision of the award on November 18, 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 hearing on provisional measures in Paris on November 9, 2009)

CEMEX Caracas Investments B.V. and CEMEX Caracas II Investments B.V. v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/08/15)

Status of Proceeding: Pending (the Tribunal holds a first session and a hearing on provisional measures in Paris on November 16, 2009)

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

Status of Proceeding: Pending (the Tribunal holds a hearing on jurisdiction in Paris on November 10-12, 2009)

Libananco Holdings Co. Limited v. Republic of Turkey (ICSID Case No. ARB/06/8)

Status of Proceeding: Pending (the Tribunal holds a hearing on preliminary jurisdictional objections in Washington, D.C. on November 2-7, 2009)

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

Status of Proceeding: Pending (the Claimant files a reply on the merits on November 12, 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 (the Respondent files a statement of costs on November 18, 2009)