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News: Icsid Tribunal Applies Ad Hoc Approach To Published by the International Institute for Sustainable Development www.investmenttreatynews.org March 2010 PAGE 1 NEWS: NEWS: ICSID tribunal applies ad ICSID TRIBUNAL APPLIES AD HOC hoc approach to confidentiality in APPROACH TO CONFIDENTIALITY IN arbitral proceeding ARBITRAL PROCEEDING By Ugo Ukpabi* PAGE 2 In Giovanna A Beccara and Others v. the crux of the dispute centered on NEWS: A merits hearing takes place The Argentine Republic a tribunal the appropriate disclosure and use in protracted NAFTA dispute over composed of Pierre Tercier, Georges of personal information relating to US tobacco settlements Abi - Saab, and Albert Jan Van den individual claimants in the case. Berg has decided that questions of PAGE 3 NEWS: Ecuadorians battle Chevron in ICSID arbitrations should be in U.S. court over BIT arbitration confidentiality and transparency “…unless there [is] an in long-running environmental agreement of the [p]arties on damage dispute determined on a case by case basis. the issue of confidentiality/ of Argentina’s response to response PAGE 5 The dispute – one of many arising out transparency, the Tribunal NEWS: Tribunals have been shall decide on the matter constituted in ICSID cases involving to its financial crisis – concerns debt Egypt, Cambodia and Argentina Argentinesecurity issued creditors, by Argentina including and the [questions of confidentiality claimants.held by numerous In late 2001, non-Argentine Argentina and was and transparency] on a case PAGE 6 NEWS: Canadian mining firm by case basis…” accused of links to murder of underunable those to meet bond its instruments.financial obligations As an Disagreements between the parties protester, has Chiapas mine shut alternativeand failed to to pay meeting amounts its obligations owed began in March of 2008 when down under the bond issue, the Argentine Argentina requested production Republic launched an Exchange of certain electronic information PAGE 7 Offer (the “Exchange Offer”). Under regarding different claimants in the NEWS: Hearings take place in the terms of the Exchange Offer, the arbitration. Argentina’s request was dispute between Electrabel and previous bondholders could exchange grounded in arguments that the format Hungary despite snowy weather their bonds (on which Argentina had PAGE 8 debt instruments to be issued at a later of the information previously provided IN BRIEF: Proceedings are date.already suspended payment) for new impededto it by the its claimants defence rights. was not “in a suspended in dispute between format easily accessible” and therefore French oil company and Ecuador The claimants refused to participate In response, the claimants stressed in that Exchange Offer. Rather, PAGE 8 respondent information in a computer- IN MEMORIUM: Sir Ian Brownlie action amounted to a violation of readablethat they andhad searchablealready provided format. the Q.C. (1932 – 2010) itsthey obligations argued that under the respondent’sthe applicable However, the claimants indicated that with the data requested as long as ofArgentina 2006, the – Italyclaimants Bilateral commenced Investment they were willing to provide Argentina Contact information: arbitralTreaty (the proceedings BIT). As a against result, Argentinain the fall agreement. The parties were unable, IISD, International Environment House 2 however,it agreed to signagree a onconfidentiality the proper scope 9 chemin de Balexert 1219 Châtelaine, Geneva, Switzerland Theseeking procedural compensatory questions damages. raised in this agreement. [email protected] case centered around the disputing of the claimants’ proposed confidential As the stalemate between the parties continued, preparations for arbitral claims by the parties on questions of confidentiality. In that regard, Continued on page 9 March 2010 NEWS: A MERITS HEARING TAKES PLACE IN PROTRACTED NAFTA DISPUTE OVER US TOBACCO SETTLEMENTS By Elizabeth Whitsitt A three-member tribunal, composed of December 14, 2009, the tribunal escrow accounts based on their Mr. Fali S. Nariman, Professor S. James of the NAFTA dispute would take place what an NPM would have paid as an arguments on the merits of the dispute confirmed that hearings on the merits annualcigarette settlement sales. The amount amounts if it reflected were betweenAnaya, and Grand Mr. John River R. Enterprises Crook, has heardSix Arthur Montour’s due process rights, part of the MSA. Escrow funds are to Nations, Ltd., et al. and the United thein February tribunal 2010.expressed With its respect expectation to States. that Mr. Montour would participate in states.be held for up 25 years as insurance in A hearing on the merits of the dispute case an NPM is ever sued by one of the the hearing. Additionally, the tribunal Soon after their implementation, after arbitral proceedings in the long- Mr.confirmed Montour counsel’s to provide right evidence to object that states saw problems with the Escrow runningtook place NAFTA last month Chapter some 11 casesix years began. wouldto any questionsbe prejudicial that tomight his position require in the pending criminal case. Statutes. Specifically states felt that jurisdictionalOver the years, and arbitral arbitrator proceedings challenges. As a result, the merits hearing salesNPMs on could just paya few significantly states, and less that sums the have been delayed several times due to statutesif they concentrated were hard to their enforce cigarette against In fact, just three months ago it seemed foreign manufacturers. that proceedings might be halted once however,commenced the on proceedings February 1st. were Due again when the claimants wrote to to snow storms in Washington D.C., the tribunal asking to reschedule the enacting two new laws. To deal with merits hearing. interrupted for approximately one theStates perceived responded enforcement to these concerns problems, by week and finally concluded on Contraband Laws were enacted, The request arose out of concerns GrandFebruary River 14th. Enterprises is a requiring cigarette manufacturers related to the initiation of a federal Canadian corporation involved in criminal prosecution of Mr. Montour the manufacture and sale of tobacco and other Grand River founders, products. Its dispute with the US to certify each year that they were revolves around the Tobacco Master bannedcomplying as contraband.with the Escrow Second, Statutes, the or Settlement Agreement (MSA) signed in Escrowelse have Statues their cigarettes were amended automatically to Kenneth Hill and Jerry Montour, for 1998 between the four major American increase escrow requirements to “trafficking” and for “conspiracy tobacco manufacturers and the NPMs, such as the claimants, which had concernedto traffic” cigarettes that the US under would US use law. Specifically, the claimants were Montour during the merits hearing UnderAttorneys the GeneralMSA, the of tobacco 46 U.S. companiesstates. Asadopted a result, a regional Grand River strategy. Enterprises ofevidence, the NAFTA provided dispute, by inMr. its Arthur criminal agreed to certain marketing and is seeking between US$ 300 – 600 prosecution of Messer’s Hill and advertising limitations, as well million for alleged violations of NAFTA Montour. Articles 1102 (national treatment), exchange for protection against future 1103 (most-favored-nation treatment), Seeking to safeguard Arthur Montour’s as perpetual annual payments in 1104 (better of national or most- due process rights against self- favored-nation treatment), 1105 incrimination, the claimants requested Thelawsuits heart by of the the states. dispute centers on (minimum standard of treatment that the tribunal reschedule the provisions in the MSA related to – under international law) and 1110 hearing until after the pending criminal Non-Participating Members (NPMs) (expropriation). - companies that refused to sign on the claimants sought a declaration from agreement. In order to prevent those thetrial tribunal was concluded. that it would Alternatively, not strike the or accord less weight to Mr. Montour’s lower costs inherent in their non- Hearing,Sources: Letteravailable to Partieshere: http:// Reconfirming participation,companies from the benefiting MSA required from states the www.state.gov/documents/February 2010 Dates for Merits participating in the merits hearing. to adopt a so-called model law. organization/133833.pdf testimony should he abstain from Letter from Respondent Regarding refused the claimants’ request. In as so-called Escrow Statutes, required Claimants’ request to Reschedule aUltimately, letter dispatched however, to the all tribunalparties on NPMsThe model to make law, annual implemented deposits by into states February 2010 MeritsContinued Hearing, on page 7 2 March 2010 NEWS: ECUADORIANS BATTLE CHEVRON IN U.S. COURT OVER BIT ARBITRATION IN LONG-RUNNING ENVIRONMENTAL DAMAGE DISPUTE By Fernando Cabrera Diaz Chevron and Ecuadorian citizens are ITN spoke to Steven Donziger, an in U.S. court in the latest chapter of Petroleum. filed against the state by Texaco plaintiffs in the Lago Argio dispute whoAmerican said that lawyer the representingagreements releasing the a 16 year battle over environmental “The dispute stems from a damage in Lago Agrio allegedly caused private claims such as those being by Texaco Petroleum (TexPet), which 1993 lawsuit launched by Texaco from liability do not apply to Chevron acquired in 2001. In January Ecuadorian citizens in the U.S. inof thisEcuador year, asked a group a U.S. of Ecuadorian District Court Mr.pursued Donziger by his also clients. argues that these
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