issue #14, week 27. 04 July 2007
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 Special: New Aspects of International Investment Law - 2004 Research Seminar by the Hague Academy of International Law

We are pleased to publish in this special issue on international investment law eight selected contributions originating in the 2004 Research Seminar by the Hague Academy of International Law. The full reports by Philippe Kahn and Thomas Wälde as well as a selection of the full-version papers have been published in New Aspects of International Investment Law / Les aspects nouveaux du droit des investissements internationaux, July 2007, ISBN-13: 978 90 04 15372 1.

The papers in this TDM Special provide shorter versions, as well as the preliminary version of Professor Wälde's report. We would like to thank the contributing authors for preparing the abridged versions of their articles:

TDM: Published articles

See https://www.transnational-dispute-management.com/journal-advance-publication.asp

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Recent issues:

NEWS

Chevron says victim of unfair trial in Ecuador

July 2, http://www.alertnet.org/thenews/newsdesk/N02240195.htm

Oil major Chevron Corp. alleged irregularities in a $6 billion lawsuit that accuses it of polluting Ecuador's rainforest and will challenge any ruling against the U.S. firm, a top company lawyer said on Monday.

"The due process is not being respected in our case," Ricardo Veiga, Chevron's managing counsel for Latin America, told Reuters during a visit to Quito.

"We will not hesitate to go to international tribunals to review what we believe is an unfair trial and lack of due process in this country," he added.

…

Warning on Dundee involvement in Bulgaria

July 2, http://www.sofiaecho.com/article/warning-on-dundee-involvement-in-bulgaria/id_23434/catid_23

The Economy Ministry has taken a sideswipe at Djevdet Chakurov's Environment Ministry, saying that Environment's behaviour regarding the Dundee Precious Metals (DPM) projects could jeopardise investment in mining in Bulgaria and cause the country a loss of revenue.

At issue is an investment proposal involving Chelopech Mining, a local subsidiary of Canadian company Dundee. There has been a protracted delay by the Environment Ministry on issuing decisions on large-scale projects at Chelopech and Krumovgrad, in spite of Dundee winning court actions ordering the Environment Ministry to issue decisions. In early June, Dundee confirmed that it would seek a ruling against Bulgaria in the international court of arbitration, and said that it would approach the European Commission to intervene.

…

If Venezuela refused to honor arbitration, CITGO's assets could be seized

Published: Monday, July 02, 2007, Bylined to: Houston Chronicle
http://www.vheadline.com/readnews.asp?id=74221

ConocoPhillips and Exxon Mobil Corp. could hold a powerful card to make Venezuelan President Hugo Chavez bet his country's sizable American assets in the high-stakes nationalization of the Venezuelan oil industry, experts say.

The CITGO subsidiary of Venezuela's national oil company has five refineries in the US experts say could be targeted for seizure if a stalemate prompts one or both US oil majors to seek recompense through international arbitration.

…

Venezuela: ConocoPhillips and Venezuela Unable to Reach Migration Agreement; Compensation Negotiations Continue

June 26, http://www.conocophillips.com/newsroom/news_releases/2007+News+Releases/062607.htm

ConocoPhillips and the Venezuelan government were unable to reach agreement regarding ConocoPhillips' migration to an Empresa Mixta structure mandated by Venezuela decree law 5.200. Therefore, pursuant to the decree, Petróleos de Venezuela S.A. (PDVSA) or its affiliates will directly assume the activities associated with ConocoPhillips' interests in the Petrozuata and Hamaca heavy-oil ventures and the offshore Corocoro development project.

While negotiations are continuing between ConocoPhillips and Venezuelan authorities concerning appropriate compensation for the company's interests, the company expects to record a complete impairment of its entire interest in its oil projects in Venezuela of approximately $4.5 billion, before- and after-tax, in its second-quarter financial results. Although the company is hopeful that the negotiations will be successful, it has preserved all legal rights including international arbitration.

Prior to the expropriation of its interests, ConocoPhillips held a 50.1 percent interest in Petrozuata, a 40 percent interest in Hamaca, and a 32.5 percent interest in Corocoro. At December 31, 2006, ConocoPhillips had recorded 1,088 million barrels of oil equivalent of proved reserves related to Petrozuata and Hamaca, and first-quarter 2007 production from these two joint ventures, after application of disproportionate OPEC reductions imposed by the Venezuelan government, averaged 82,000 net barrels per day of crude oil. First-quarter 2007 net income attributable to ConocoPhillips' Venezuelan operations was $27 million.

Additional information is available in ConocoPhillips' filings with the U.S. Securities and Exchange Commission.

Vietnam: Decree to be enacted to pave way for foreign investment

June 29, http://english.vietnamnet.vn/biz/2007/06/712119/

The Ministry of Planning and Investment (MPI) is to promulgate a decree guiding the implementation of several of Vietnam's WTO commitments. This is the long-awaited document which is hoped will help settle the impediments in fulfilling WTO commitments in terms of investment, paving the way for the new investment flow into Vietnam.

The Common Investment Law and the decree guiding the implementation of the law both mention the list of conditional investment fields. However, investors cannot find information about the detailed conditions for every investment field there, and have to check for information under other specific laws. To date, the document which stipulates the detailed conditions for conditional investment fields has not been promulgated yet.

…

Fireman's Fund Insurance Company v. United Mexican States, ICSID Case No. ARB(AF)/02/1 (NAFTA). - Award, 17 July 2006

The tribunal (van den Berg, Olavarrieta and Lowenfeld) rejected FFIC's request to find that the Government of Mexico, through its acts and omissions, violated Article 1110 of the NAFTA by expropriating FFIC's investment in dollar-denominated debentures issued by GrupoFinanciero BanCrecer S.A. de CV. The Fireman's Fund final award (redacted version of award dated 17 July 2006) is available at http://ita.law.uvic.ca.

Pluris Energy Provides South America Corporate Update

http://www.oilvoice.com/Pluris_Energy_Provides_South_America_Corporate_Update/10034.htm

…

Pluris Energy commenced an arbitral action through the International Chamber of Commerce in Paris, France related to protecting its rights under the terms of the Share Purchase Agreement ("SPA") entered into between Pluris Energy and San Enrique on August 18, 2006.

Pluris Energy's Chairman & CEO, Mr. Sacha H. Spindler stated, "Although completion of the San Enrique acquisition has been delayed through injunctions imposed regarding San Enrique's Tierra del Fuego interests, we're taking the necessary steps to ensure that Pluris Energy's rights and interests in the acquisition of San Enrique are protected and that resolutions related to the issues at hand can be made in a time frame that fits within our scheduled South American acquisition and development objectives."

…

ABA: The Arbitrator's Disclosure Conundrum - Feedback on Draft Guidelines Requested

In 2006, Steve Yusem and Paul Dubow, co-chairs of the Arbitration Committee of the Dispute Resolution Section, established a Disclosure Subcommittee (Subcommittee) to formulate recommended arbitrator disclosure guidelines[1] to meet "potential or perceived partiality" disclosure requirements and standards. The Subcommittee is comprised of Kurt Dettman (Chair), Russel Murray, Cathy Shanks, Jim Stone, and Mike Timpane.

The reason for establishment of the Subcommittee was that a myriad of disclosure standards are being used around the country, some required by statute, some driven by court decisions, and some established by arbitration service providers. The Subcommittee's charge was to assess these varying standards and propose a "middle ground" for disclosure requirements. The challenge for the Subcommittee was to establish a reasonable balance between the duty to disclose facts and relationships that potentially impact arbitrator impartiality and the real world challenges facing arbitrators in trying to identify, evaluate, and disclose all relationships that, if left undisclosed, might later provide a basis for setting aside an arbitration award.

The Subcommittee prepared a recommended Disclosure Checklist, with accompanying Commentary, for arbitrators to use in identifying and disclosing relationships and circumstances that raise such "potential or perceived partiality" issues. The Commentary provides explanations and examples to help guide the user in working through the Checklist. The Checklist also provides definitions for terms used and a format for recalling and considering what information to disclose. Together, the Checklist and Commentary provide disclosure guidelines that may provide a "safe harbor" to those arbitrators who use them.

The Subcommittee presented its paper at the Section of Dispute Resolution Annual Conference in Washington, D.C., in late April, and also recommended it for adoption by the Arbitration Committee. In light of the positive response to the paper, the Arbitration Committee Co-chairs intend to present the paper to the Section's Council at the annual ABA Conference in August 2007.

In the meantime, however, the Disclosure Subcommittee welcomes comments and feedback on its Guidelines and Commentary, so that the paper as presented to the Section's Council will have the benefit of input from arbitration practitioners and providers. The Subcommittee has posted its paper on the Arbitration Committee's web site and will also send it to the Committee's distribution list. If you have comments or questions about the white paper, please send them via e-mail response to the Chair of the Subcommittee, Kurt Dettman, at kdettman@c-adr.com. The Subcommittee will take into account your comments in the paper presented to the Section Council in August.

The Subcommittee has also been working with Professor Mary Bedikian of the Michigan State University College of Law. Professor Bedikian has compiled a summary level list of disclosure requirements under various statutory standards[2] and as used by provider organizations such as the AAA and JAMS. Professor Bedikian welcomes comments on the disclosure listing. She can be contacted at bedik@law.msu.edu.

Footnotes

[1] http://meetings.abanet.org/webupload/
commupload/DR011000/relatedresources/The_Arbitrators_Disclosure_Conundrum.pdf [pdf]

[2] http://meetings.abanet.org/webupload/
commupload/DR011000/relatedresources/Summary_level_list_of_disclosure_requirements_for_Arbitrators.pdf [pdf]

Herbert Smith launches study into how effectively and efficiently ADR can be used by in-house counsel

July 2, http://www.thelawyer.com/cgi-bin/item.cgi?id=126890&d=11&h=24&f=23

Herbert Smith has launched a study into how effectively and efficiently alternative dispute resolution (ADR) can be used by in-house counsel.

The study, which will take place over the summer and be published in the autumn, is probing general counsel on how they currently use ADR options such as mediation and what difficulties they have encountered.

Alex Oddy, a litigation and arbitration partner at the firm, said the research will suggest steps general counsel could take to structure their departments to focus more on ADR.

…

EVENTS

Specialised Arbitration & Advocacy Skills in International Oil & Gas Disputes
Annual CEPMLP Seminar exploring the legal and practical issues arising in the resolution of oil and gas disputes through commercial and investment arbitration
August 27-31, 2007 (provisional). The Old Course Hotel, St. Andrews, Scotland, UK
More information is available at the seminar website.

The CIArb's Continuing Commitment to Mediation - London Branch IVth Annual Mediation Seminar

http://www.arbitrators.org/Institute/PR_CIA034.asp

The art, science and practice of mediation have developed dramatically since the first of these seminars and, in addition, mediation is becoming more ingrained in the British way of life, whether in the commercial sector or otherwise (including the family, neighbourhood, community and other specialisms). Mediation is growing outside the UK with the latter, particularly the CIArb, taking a lead in spreading the message around Europe and elsewhere.

The CIArb London Branch is consequently very pleased to have held its IVth Annual Mediation Seminar on 20 June 2007.

…

ACICA/ACLA Joint Conference on International Commercial Arbitration - August 10

The objective of ACLA is to be, and to be recognised as, the primary professional association of in-house lawyers in Australia, providing an efficient and effective range of benefits and services which will advance members' professional development and standing and meet their individual needs.

The Conference showcases an impressive program accommodating both the theoretical underpinnings of international commercial arbitration as well as the practical application of international arbitration in Australia and our region.

More details at http://www.acica.org.au/news.html

Short overview of upcoming events

The above information is reproduced from the International Arbitration Planner by kind permission of Lovells (www.lovells.com and www.lovells.com/arbitration). More details on these and many other events can be found at www.arbitrationevents.com

MOVES / JOBS

John Gaffney joins Skadden, Arps, Slate, Meagher & Flom (UK) LLP

John Gaffney joined the International Arbitration Group of Skadden, Arps on July 2nd. He is based in their London office. John Gaffney has published widely in the area of international arbitration and is a member of various arbitration panels, including the CIETAC Panel of International Arbitrators, the WIPO Domain Name Panelist for the ".ie" domain, and the Panel of Arbitrators of the Law Society of Ireland. He is also a member of the Young International Arbitration Group of the London Court of Arbitration and a Young Practitioner member of the International Arbitration Institute, Paris.

George Burn Joins Salans Arbitration Team

Salans is delighted to welcome George Burn as Head of International Arbitration, London. George joins our highly regarded International Arbitration Practice Group. The Group has members across the entire Salans network and is based in Paris. George will lead its expansion into the UK.

George is an established international arbitration specialist and English qualified lawyer. Most of his experience comes from disputes in technical or infrastructure fields (such as energy, construction and engineering, mining, rail and shipping), though George has a secondary specialism in sports disputes.

He has worked under all the major arbitration rules, and is experienced in the conduct of the expanding field of treaty arbitration. George is active in the international arbitration community, most recently as a member of the ICC Task Force on Reducing Time and Costs in Arbitration.

Commenting on his move to Salans, George said, "I am proud to join Salans and its excellent arbitration team. I look forward to contributing to the team's long-term growth in London. These are exciting times in the practice of international arbitration. Joining Salans now represents a great opportunity, one I am very excited about."

CIArb: New Director Mike Owen to Drive Global Dispute Resolution Standards

http://www.arbitrators.org/Institute/PR_CIA031.asp

June 2007 - Mike Owen joins the Chartered Institute of Arbitrators (CIArb), as Director of Marketing, Membership and Training as the global demand for expert dispute resolvers grows.

In this new role, Mike's remit will include elevating the profile of the CIArb in new sectors, promoting the benefits and services offered by the organisation, enhancing communications and support to members and branches across the UK and internationally, as well as developing the education, professional training and e-learning support programmes.

…

BOOKS

New Aspects of International Investment Law / Les aspects nouveaux du droit des investissements internationaux

Edited by Kahn and Wälde. Published: July 2007. Series: Recueil des Cours - Colloques / Workshops / Law Books of the Academy, 26. ISBN-13: 978 90 04 15372 1 (ISBN-10: 90 04 15372 1). Hardback, 1072 pp.

This collection of essays offers a precise and evocative image of a remarkable evolution in concepts and practices within international economic law, which may be a preparatory phase on the way towards a true law of globalisation. See www.brill.nl for more information.

Note: Abridged versions of some of the papers have just been published in the TDM Special: New Aspects of International Investment Law - 2004 Research Seminar by the Hague Academy of International Law.

The International Convention on the Settlement of Investment Disputes (ICSID): Taking Stock after 40 years

The International Convention on the Settlement of Investment Disputes (ICSID): Taking Stock after 40 years, Rainer Hofmann / Christian Tams (eds.), Nomos, Baden-Baden, ISBN 978-3-8329-2793-6, € 59,-

University of Frankfurt organised an international symposium on current issues of ICSID law. The papers have now been published in a book. Among the authors are Christoph Schreuer, Kaj Hobér, Anthony Sinclair, August Reinisch, Karl-Heinz Böckstiegel, Noah Rubins, Richard Kreindler and Richard Happ.

See www.nomos.de. Customers from the US and Canada: Please order from ISBS, the North-American distribution partner, if available Nomos Publishers, c/o International Specialized Book Services, 920 NE 58th Ave., Suite 300, Portland, OR 97213-3786, USA, phone: +1-800-944-6190, fax: +1-503-280-8832; mail: orders@isbs.com; Web: www.isbs.com