September 26, 2016

International Arbitration News

A Newsletter from the International Arbitration Practice

Recent Victories and Engagements

Firm Secures Victory for Client Chile in USD 340 Million Resubmission Proceeding in Longest-Running Arbitration in ICSID History

An Arnold & Porter team that included Paolo Di Rosa, Gaela Gehring Flores, and Mallory Silberman successfully represented the Republic of Chile in the resubmission proceeding in the long-running ICSID arbitration Victor Pey Casado and President Allende Foundation v. Republic of Chile (ICSID Case No. ARB/98/2), which was initiated 19 years ago. In an award (PDF) issued on 13 September 2016, the Tribunal, composed of Sir Frank Berman KCMG QC, Mr. V.V. Veeder QC, and Mr. Alexis Mourre, unanimously dismissed all of the Claimants' damages claims (which amounted to USD 340 million), and in addition granted Chile a partial award of costs. "While the new award provides a measure of satisfaction and vindication to Chile's defence team — including those of us who have been working on the case for 15 years — those sentiments are tempered by our strong belief that, for all its complexity and duration, this case should never have been brought to international arbitration in the first place," said Mr. Di Rosa in a comment published by the Global Arbitration Review.

Together with two other recent victories (described immediately below), the award marks the 25th consecutive positive result (PDF) obtained by Arnold & Porter on behalf of sovereign clients in investment-treaty arbitrations.

Arnold & Porter Wins Investment Arbitration Involving Claim of USD 412 Million, on Behalf of Republic of Panama

A team led by Whitney Debevoise and Gaela Gehring Flores, which included associate Alejandra Parra-Orlandoni and foreign attorney Natalia Giraldo-Carrillo, secured the dismissal for lack of jurisdiction of an investment-treaty claim against Panama in ICSID arbitration Transglobal Green Energy, LLC et al. v. Republic of Panama (ICSID Case No. ARB/13/28). In an award (PDF) issued on 2 June 2016, the Tribunal, composed of Dr. Andrés Rigo Sureda, Prof. Christoph Schreuer and Prof. Jan Paulsson, upheld Panama's objection of abuse of process and not only dismissed all claims, but also awarded Panama the costs of arbitration, as well as almost all of Panama's attorneys' and expert fees (in the amount of USD 2.2 million), plus interest. Commenting on the award for Global Arbitration Review, Mr. Debevoise stated: "Perhaps future claimants and their counsel who want to take a flier on presenting a domestic dispute as an international claim will think more carefully before proceeding. They should not view thin cases as free options."

Arnold & Porter Wins Investment Arbitration Involving Claim of USD 100 Million, on Behalf of the Dominican Republic

An Arnold & Porter team led by Paolo Di Rosa and Raul Herrera, which included associates Mallory Silberman, José Antonio Rivas, and Catherine Kettlewell, as well as foreign attorneys Daniela Paez Cala and Natalia Giraldo-Carrillo, obtained an award (PDF) on 31 May 2016 in favor of the Dominican Republic in an investment arbitration, Corona Materials LLC v. Dominican Republic (ICSID Case No. ARB(AF)/14/3). The claim was brought by a US mining company pursuant to the Dominican Republic-Central America-United States Free Trade Agreement (DR-CAFTA). Following an expedited procedure initiated by the Dominican Republic, the Tribunal (Prof. Pierre-Marie Dupuy, Mr. Fernando Mantilla-Serrano, and Mr. J. Christopher Thomas QC) agreed with the Dominican Republic that the Claimant had failed to satisfy the condition in DR-CAFTA Article 18.10.1. That provision requires that a claimant submit its claim to arbitration within three years after it "first acquired, or should have acquired, knowledge" of the alleged breach and injury. The Tribunal accordingly dismissed the Claimant's USD 100 million claim for lack of jurisdiction. Commenting on the award to Global Arbitration Review, Mr. Di Rosa stated: "We are pleased with this decision, which shows that statute of limitations clauses in investment treaties must be observed scrupulously by would-be claimants. Those clauses are there for a reason."

A video recording from the jurisdictional hearing in the Corona Materials arbitration is available online.

Arnold & Represents Bulgaria in Second ICSID Arbitration

The firm is representing the Republic of Bulgaria in a recently initiated ICSID arbitration, CEZ, a.s. v. Republic of Bulgaria (ICSID Case No. ARB/16/24). The case, which concerns certain electricity-related measures (see International Arbitration Reporter article (subscription required)), is a second pending arbitration in which Arnold & Porter is defending Bulgaria, the other being State General Reserve Fund of the Sultanate of Oman v. Republic of Bulgaria (ICSID Case No. ARB/15/43).

Arnold & Porter Attorney News

Obama Formalizes ICSID Roster Designations of Two A&P Partners

On 23 February 2016, President Barack Obama formalized the designation of A&P partners Paolo Di Rosa and David Huebner as two of the four arbitrators appointed by the United States to the Roster of Arbitrators of the International Centre for Settlement of Investment Disputes (ICSID), for a six-year term. The appointments were first announced by President Obama in December 2015 (see White House press release).

Whitney Debevoise Appointed to ICSID Tribunal

Whitney Debevoise has been appointed as an arbitrator in ICSID arbitration Abertis Infraestructuras, S.A. v. Argentine Republic (ICSID Case No. ARB/15/48). Mr. Debevoise is a member of the ICSID Panel of Arbitrators, along with A&P partners Paolo Di Rosa and David Huebner.

Three A&P Attorneys Recognized by Who's Who Legal

Dmitri Evseev, Anton Ware, and Mallory Silberman have been recognized by Who's Who Legal as "Future Leaders" in Arbitration.

ICCA Sydney 2018 Congress

Monty Taylor was appointed as a member of the ICCA Programme Committee for ICCA Sydney 2018.

Pro Bono Award for Arnold & Porter Attorneys

KIND Awards

(From left: A&P's Raul Herrera and Ronald Schechter)

Kids In Need of Defense (KIND), a Washington, DC-based organization whose members represent unaccompanied immigrant and refugee children in their deportation proceedings, honored Arnold & Porter with its 2016 "Vision Award" for work undertaken by Raul Herrera, Samuel Witten, and foreign attorney Natalia Giraldo-Carillo on behalf of vulnerable children in Honduras, El Salvador, and Guatemala who are seeking refuge in the US. The Arnold & Porter trio was praised for helping KIND implement an innovative pro bono support program and for recruiting more than a dozen Central American law firms to provide pro bono representation to children.

Upcoming Events

28 September 2016, Washington, DC. As in previous years, Arnold & Porter will be the sponsor of the American University Washington College of Law Annual Lecture on International Commercial Arbitration. The 2016 Annual Lecture, which is the eleventh edition of the lecture, will be presented by James R. Crawford, Judge at the International Court of Justice; Research Professor of Law, Latrobe University; and Former Whewell Professor of International Law, University of Cambridge.

14 October 2016, Prague. Dmitri Evseev will present on the topic of international investment agreements to government officials attending the Sixth Investment Treaty Arbitration Conference, organized by the Ministry of Finance of the Czech Republic.

28 November–9 December 2016, Washington, DC. José Antonio Rivas will co-present an International Law Institute course on "International Investment Treaties and Investor-State Arbitration."

Recent Events and Publications

Law360 Q&A with Dmitri Evseev. A Q&A interview with Dmitri Evseev was published by Law360.

Law360 Q&A with Gaela Gehring Flores. A Q&A interview with Gaela Gehring Flores was published by Law 360 (subscription required).

Emergency Arbitrator Provisions. David Huebner, Anton Ware, Amy Endicott, and John Muse-Fisher prepared an Advisory on "Default Application of Emergency Arbitrator Provisions in Commercial Arbitration Rules."

US Law Suits Against Foreign Governments. An article by John B. Bellinger III, "Lawsuits Force Foreign Governments to Navigate U.S. Courts System," was published by The Washington Diplomat.

Settlement at Iran-US Claims Tribunal. A two-part article by Bridie McAsey, "The Recent Settlement at the Iran-United States Claims Tribunal: Historical Context, Implications, and the Future," was published by Kluwer Arbitration Blog (part 1; part 2).

Tribunal Secretaries. An article, "Update on tribunal secretaries: an exhausted debate?", by Bridie McAsey was published in the August issue of the International Bar Association's Arbitration Newsletter (requires subscription).

Procedural Hearings. In September 2016, Mallory Silberman participated in Y-ADR "mock procedural hearing" event, designed to teach young practitioners about procedural hearings under the CPR Rules for Administered Arbitration of International Disputes.

2005-2015: Was it a Successful Decade? As part of the International Bar Association Annual Meeting, Raul Herrera was a speaker discussing the impact of foreign financing in Latin America. 21 September, Washington, DC.

Hot Topics in International Law. Raul Herrera was a speaker at the forty-first Hispanic National Bar Association Annual Meeting. 8 September, Chicago.

ICSID Arbitration. Monty Taylor lectured on ICSID arbitration during the London Program at the Pepperdine University School of Law. 1 September, London.

International Energy Charter. José Antonio Rivas participated in a panel discussion on "Legal Considerations to Foster Investment in the Energy Sector under the International Energy Charter," organized by the Energy Charter Secretariat at the Congress of the Republic of Colombia (PDF). 3 August, Bogota, Colombia.

New Generation of Multilateral and Bilateral Investment Treaties. José Antonio Rivas participated in a panel discussion on "Negotiating treaties: new generation of bilateral and multilateral agreements" (PDF, in Spanish), including CEETA, TTP, and TTIP, at the First Investment Arbitration Seminar in Costa Rica organized by Young ICSID and CYA. 29 July, San José, Costa Rica.

Careers in International Law. Gaela Gehring Flores spoke on this topic at an event organized by the District of Columbia Bar. 21 July, Washington, DC.

Constitution of Arbitral Tribunals. Catherine Kettlewell presented a lecture on this topic at the Universidad Carlos III de Madrid's International Arbitration Summer Course. 19 July, Madrid.

Interim Measures Against States. Anton Ware participated in a panel discussion on "Interim Measures Against States" at the 28th Annual Institute for Transnational Arbitration (ITA) Workshop. 16 June, Dallas.

International Arbitration Webinar. David Huebner presented a webinar on international arbitration to the Association of Corporate Counsel. 6 June.

Investor-State Arbitration. Mallory Silberman lectured on investor-State arbitration during the International Arbitration Summer Program at American University in Washington, DC.

Juris Investment-Treaty Conference. José Antonio Rivas participated in a panel discussion on the Trans-Pacific Partnership (TPP) arbitration model versus the European proposal of a court system in the Transatlantic Trade and Investment Partnership (TTIP) negotiations at the Tenth Annual Investment-Treaty Arbitration Conference, organized by Juris Conferences. 12–13 May, Washington, DC.

Arbitration in Emerging Markets. Anton Ware participated in a panel discussion on "Arbitration in Emerging Markets" as part of a symposium at the Stanford Law School. 30 April, Standford.

Third-Party Funding Debate. Mallory Silberman participated in a debate on third-party funding in the inaugural edition of the Young Arbitrator Debate Series. 21 April, Washington, DC.

GAR Live BITs Conference. Gaela Gehring Flores moderated a debate at the Second Annual GAR Live BITs conference. 18 April, Washington, DC.

Investment Arbitration Competition. Catherine Kettlewell served as a judge of the final round in the Spanish-language Third International Investment Arbitration Competition (Tercera Competencia de Arbitraje Internacional de Inversion) organized by the Washington College of Law. 21 March, Washington, DC.

Washington College of Law Conference. Paolo Di Rosa was a panelist at a conference on "The Police Power and Investment Treaty Guarantees: A Delicate Balance?" 17 March, Washington, DC.

Challenges to Arbitrators. Mallory Silberman participated in a panel discussion on challenges to arbitrators as part of the Georgetown International Arbitration Society's Fourth Annual International Arbitration Month. 26 February, Washington, DC.

APEC Workshop on IIAs. Gaela Gehring Flores participated in a Capacity Building Workshop on Existing International Investment Agreements in the APEX Region, organized by Asia-Pacific Economic Cooperation. 22–24 February, Lima.

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