Professor Thomas Wälde (†)
Profile
It is with great sadness that we have to inform you that Professor Thomas Wälde passed away on October 11 2008 at his holiday residence in the south of France.
Scholar, Mediator, Arbitrator, Expert Witness and Arbitration / Litigation Adviser
Thomas Wälde was a specialist in international investment, economic, oil, gas, energy and mineral law, with a particular focus on arbitration in these fields. Former Interregional Adviser on Petroleum, Mineral & Investment Law with the United Nations and Executive Director of the Dundee University Centre for Energy, Petroleum and Mineral Law & Policy. Dr. iur (summa cum laude) Frankfurt), LL.M. (Harvard), Rechtsanwalt (Frankfurt) & Barrister (Lincoln's Inn & Essex Court Chambers, London) Professor (and Jean-Monnet Chair) of International Economic, Natural Resources & Energy Law.
Practice 2002 - 2008
Frequent expert witness, litigation consultant and expert counsel, arbitrator and mediator in large, complex cross-border disputes in the oil, gas, energy and mining industries (including finance and infrastructure).
- Appointed as arbitrator in investment disputes under NAFTA Chapter XI and BITs, includes:
- Thunderbird v Mexico (NAFTA Chapter XI, Uncitral Rules; Gam(bl)ing investment; appointed by investor)
- K+ v. Czech Republic (appointed by state; BIT, Uncitral Rules): settled
- arbitrator in a commercial dispute concerning a mining project in South-East Asia
- arbitrator in CAFTA-based investment disputes in the electricity industry (Claimant X v Country Z)
- Mediation: 500 M $ dispute between mining company and Caribbean country (Falcondo-Dominican Republic) (settled); between private oil companies (on disputes relating to bank guarantee and operator position in Joint Operating Agreement (settled) ; recommended by ICC as mediator in dispute over management of joint venture; settled by parties) ; in 1 BN US £ dispute between the leading Swedish and Polish energy companies (Vattenfall-PSE) (settled)
- Proposed or nominated as arbitrator in several other cases, including resources and energy-related concession disputes, but declined due to possibility of conflict
- Expert Witness before international arbitration tribunals (ICSID, Energy Charter Treaty;
Bilateral investment treaties; contract-based arbitration in the field of oil and gas, mining,
electricity/energy; utility & infrastructure with a particular focus on tax matters),
domestic courts (US, English, Kazakh) and conciliation panels. Includes (as a rule expert
opinion with cross-examination except if waived):
- Duke v Peru (ICSID): international and comparative tax law, tax avoidance rules, international investment law
- Glamis v US (NAFTA Ch XI): comparative mining law, mine reclamation best practices, indirect expropriation, fair and equitable treatment, interaction between international human rights, cultural heritage and indigenous peoples' instruments and NAFTA Chapter XI
- Petrocon v India (Uncitral rules): tax issues relating to petroleum additional profits (rate-of-return) tax, de-commissioning cost, accounting treatment of "carry" of state oil company: Tribunal followed opinion on accounting of state enterprise "carry"
- Nykomb v Latvia (Energy Charter Treaty, SCC arbitration in Stockholm): national treatment, umbrella clause, indirect expropriation, ratio temporis issues: Tribunal followed opinion; cross-examination waived by respondent
- Petrobart v Kirgizstan: Concept of "investment" under Energy Charter Treaty: Tribunal applied wide concept of "investment" as explained in expert opinion
- US oil company v OPEC country, equilibrium clause in production-sharing contracts, stabilisation clause practice, invokability of equilibrium clause by state petroleum company: Conciliation panel suggests settlement
- Plama v Bulgaria: Disclosure obligations by claimant in Energy Charter Treaty arbitration: Claimant added disclosure
- Yukos v Deutsche Bank et.al.: Russian foreign investment law; arbitration consent; Energy Charter Treaty. Houston federal court qualified opinion as "plausible"
- Several extradition cases against Yukos senior executives in London: Assessment of Russian tax prosecution against Yukos in light of international and comparative tax law; transfer pricing and application of anti-avoidance concepts; bankruptcy procedure; political economy and background of Russian petroleum policy: English court followed opinion
- Arbitration between two very large oil companies: Force majeure, res judicata and tax matters (no award yet)
- International oil company v Central Asian country (domestic tax court): Recognition of overhead costs as part of production-sharing contract cost recovery (domestic tax court followed expert opinion)
- UK tax matter: Qualification of production-sharing contract
- Very large international oil company v US tax authorities: qualification of UK additional profits' tax for tax credit purposes: Very large international oil company prevailed before US tax court
- Contract-based dispute between two African oil companies: Assignment of Joint Operating Agreement
- Expert opinion for leading EU energy company in 40 Bn Euro intra-EU acquisition offer (applicability of Energy Charter Treaty to host state discriminatory practice): EU Commission modified its infringement procedure
- Calculation of corporate overhead in context of cost recovery of production-sharing contract: Expert opinion submitted for Maersk Petroleum to domestic tax court in Central Asian country (court followed expert opinion)
- Qualification of oil and gas development contract for UK accounting purposes for significant UK oil company
- "denial of benefit" under Art. 17 ECT and other investment treaties
- Other on-going and confidential disputes
- Litigation adviser (expert counsel) in several large-scale international arbitration cases, mainly investment and commercial (in oil, gas and energy primarily). Testing and design of legal argument; mock-trial; education of younger arbitration counsel; identification and assessment of candidates for arbitrator and chair appointments and of expert witnesses; organisation of internal brainstorming sessions to test strength of case and argument; coordination between related arbitrations
- Adviser to most relevant international organisations, including World Bank, UN, Unctad, UN / ECE, EC Commission, APEC, OPEC, IEA, IUCN on energy (including renewable) law, dispute resolution mechanisms, legislative reform
- Adviser to governments, international companies and industry associations on:
- Upstream oil and gas contracts
- Mining (inclusive diamond) tax (royalty, stabilisation provisions) - South Africa (Chamber of Mines and corporate clients)
- Infrastructure concession law reform, tender regulations, model terms
- Tax matters
- Coverage of loans under investment treaties
- Renegotiation, stabilisation & equilibrium clauses
- Structuring of investment to maximise investment treaty coverage
- Legislative reform
- Assessment and preparation of case for arbitration - minimum investment obligation under production-sharing contracts
Experience and Prior Practice (before 2002)
- Research Assistant ICJ Judge (Professor) Richard Baxter and Detlev Vagts, Harvard Law School (1972-74); Research Fellow, Institute for International Economic Law, Frankfurt; initiative and design for research group on international mineral law (1974-1976, 1978-89)
- From 1976-1990: Specialised legal adviser roles in United Nations system with increasing
responsibilities:
- UN Centre on Transnational Corporations (now: Unctad Division on International Investment): research, publication and participation in technical assistance in the field of international regulation of foreign investment
- UNIDO: Long-Term Consultant on legal instruments for foreign investment and transactions in industry
- UN/DTCD: Interregional Adviser on Petroleum, Mineral and International Investment Law: Advisory services on legislative reform, negotiation of contracts with foreign companies, privatisation, resolution of disputes; organisation of international conferences; drafting of authoritative UN guidelines (e.g. on environmental regulation of mining); of UN Secretary-General Reports (on Permanent Sovereignty over Natural Resources, Permanent Sovereignty over National Resources in Occupied Palestinian Territories); organisation of training and technical assistance; fund-raising; management of multi-disciplinary investment promotion teams with an annual budget of over 5 M US$ (in 1990)
- From 1990 to 2002: Executive Director, CEPMLP/Dundee: Developed from 4 to 150 graduate students, income and budget increased by 80 times over ten years; CEPMLP obtained in 2004 Queen's award for enterprise for the achievement in terms of growth, quality and reputation; responsibility for management of about 50 academic and administrative staff and external partners; 150+ graduate students; extensive professional & executive training, fund-raising, conference and consultancy programmes; budget of over 2 M £; experience included extensive financial restructuring and budget control mechanisms.
- From 1980 to 2003: Design, Acquisition, Management and Delivery of Advisory Services to about 70 governments, many companies and all relevant international organisations throughout the world, including large-scale consultancy services under the EU Tacis, Phare and Synergie-Programmes
Countries Worked in
Includes: Mali, Angola, Mozambique, Ethiopia, Burkina Faso, Colombia, Peru, Guyana, Trinidad, Cayman Islands, St Lucia; Haiti, Latvia, Poland, Sweden, Lithuania, Estonia, Russia, Ukraine, Kazakhstan, Uzbekistan, Georgia, Kirgizstan, Uzbekistan, Azerbaijan, Albania, Venezuela, Brazil, Saudi Arabia, Kuwait, Abu Dhabi, Tunisia, Niger, Algeria, Egypt, Jordan, Syria, Lebanon, Kenya, Sierra Leone, Guinea, Liberia, Paraguay, Bolivia, Chile, Argentina, Ecuador, Peru, Vietnam, China, US, Philippines, Malaysia, Thailand, Indonesia, India, Bhutan, Pakistan, Iran, , Serbia, Laos, Surinam, Dominican Republic, Oman, Lithuania, Estonia et.al. Negotiated and managed negotiation assistance inter alia in several investment projects related to coal (Colombia), gold (Mali), Guyana (uranium) - all led to completed transaction.
Professional Appointments, Positions & Recognition
- Panel (energy - natural resources/environment) of international arbitrators appointed by the Secretary General of the Permanent Court of International Arbitration;
- Energy arbitrators list, AAA;
- Member of Institut pour l'Arbitrage International (IAIP)
- quot;Special member" (since 2006) of the Association of International Petroleum Negotiators (AIPN);
- International Bar Association (oil&gas, mining, utilities and commercial arbitration committees);
- London International Court of Arbitration;
- DIS (German Institute of Arbitration);
- Expert Panel, International Centre for Dispute Resolution (energy arbitrators' panel); International Law Association (Foreign Investment Law Committee; reporter on compensation/damages and taxation);
- American Society of International Law;
- Consultative member (Investment Treaty Forum), British Institute of International & Comparative Law;
- Advisory Board, Columbia University Program on International Investment Commission for Settlement in Arbitration, Centre for Int'l Dispute Resolution;
- Named in several guides (Euromoney, Who's Who in International Arbitration) as leading international energy lawyer, one of three arbitrators in Scotland mentioned;
- Who's Who in International Law (E. Lauterpacht) 2007;
- Keynote speaker, speaker, commentator and session chair at 10-25 professional, industry and academic conferences per year;
- Visiting Professor (Universite de Paris II (Pantheon-Assas); American University (Washington DC);
- Fellow CEPS (Brussels);
- Former Chair of Natural Resources/Energy Law Trust;
- Frequent Assessor and PhD examiner at universities in the UK, EU, US, Australia and Nigeria;
- Energy Working Group, IUCN Commission on Environmental Law;
- Director of Research, 2004 Hague Academy for International Law Research Seminar on International Investment Law;
- Academic Council, Institute of Transnational Arbitration;
- World Energy Council, Task Force on Energy Investment & Trade;
Editorships
- Moderator & owner of OGEMID (oil-gas-energy-mining-investment disputes) and OGELFORUM (energy-natural resources), the two leading international electronic admission/subscription-only discussion forums
- Editor, OGEL (Oil Gas Energy Law Intelligence: Journal - Archive)
- Editor, TDM (Transnational Dispute Management: Journal - Archive)
- Editor (1992-2007) Journal of Energy & Natural Resources Law
- Editor (2007-2008) Oxford University Press / AIPN Journal of World Energy Law & Business
- Editor of the series "International Natural Resources & Energy Law and Policy (Kluwer)
- Corresponding Editor responsible for natural resources/energy and international investment of International Legal Materials
- Associate Editor of the Journal of World Trade (to 2008) and the Journal of World Investment & Trade.
- Editor for legal matters of the (UN) Natural Resources Forum (1981-1991). Editorial Board of Business Law International (Published by the International Bar Association)
- Russian Oil, Gas & Energy Law Journal
- Brazilian Oil, Gas & Energy Law Journal
Languages
English, German, French, Spanish; Italian; some Russian & Arabic
Paper
Chapter 8 
"Equality of Arms" in Investment Arbitration: Procedural Challenges by Thomas W. Wälde is made available on TDM with kind permission of Oxford University Press. The chapter comes from the book Arbitration Under International Investment Agreements: A Guide to the Key Issues. Edited by Katia Yannaca-Small, Oxford University Press, 2010. 790 pages. ISBN: 978-0-19-534069-3.
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