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Arbitration Quarterly, Page Our Collection of the Most Interesting and Significant Developments in 01 Editors’ Remarks International Arbitration from the Last Quarter Arbitration uarterly Q Issue No 2 – May 2013 Editors’ Remarks In This Issue Welcome to this second edition of Debevoise’s Arbitration Quarterly, Page our collection of the most interesting and significant developments in 01 Editors’ Remarks international arbitration from the last quarter. Investment Arbitration The first months of 2013 have seen continued development towards a single system for the resolution of international disputes. We have seen 02 Recent Developments in Investment Arbitration the continued expansion of international arbitration into new areas, with Myanmar officially confirming its intention to accede to the New York Regional Focus Convention, ICSID Tribunals allowing class actions and cases based on 06 Russian Higher Arbitrazh Court Issues complex financial instruments to proceed, and the launch in New York of a Long-Awaited Information Letter on new arbitration institution. Public Policy There have also been developments in existing arbitration spheres. The 08 Myanmar to Accede to the New York Convention publication by the Russian Higher Arbitrazh Court of its position on the meaning of “publicly policy” is welcome and confirms the trend towards 08 Hong Kong’s Court of Final Appeal Brings international homogenisation in approach to arbitration proceedings. Certainty on Setting Aside of Awards And at an institutional level, arbitration rules continue to be revised and 09 French Supreme Court Extends an updated to keep pace with parties’ needs: as we report here, the Singapore Arbitration Agreement to include a Third- Party “Involved in the Performance of the International Arbitration Centre has published an updated version of its Contract” Rules, and new versions of the HKIAC and LCIA Rules are expected in the 10 Paris Court of Appeal : A Shift in its near future. Position on Setting Aside of Awards? We hope that you will find this edition of the Arbitration Quarterly an 12 Second Circuit Holds that Federal interesting and useful summary of the key developments around the world. Common Law Defines the Scope of If any of these articles catches your attention and you would like to know “Arbitration” Under the Federal more, we would be delighted to hear from you. Arbitration Act 13 Determining the Correct Governing Law Very best wishes, has Important Consequences for Indian Contracts Catherine M. Amirfar Arbitration Practice Steven S. Michaels 14 Launch of the New York International and the International Dispute Resolution Group Arbitration Center of Debevoise & Plimpton LLP 15 The Singapore International Arbitration Centre (SIAC) Adopts New Rules 16 Forthcoming Events If there are additional individuals within your organization who would like to receive Arbitration Quarterly, please email 17 Debevoise International Dispute Deborah Enix-Ross at [email protected]. Resolution Group 1 Issue No 2 - May 2013 Arbitration Quarterly Recent Developments in Arbitration Quarterly is a publication of Investment Arbitration Debevoise & Plimpton LLP New York London In the first quarter of 2013 there have been a number of significant 919 Third Avenue Tower 42 decisions involving some of investment arbitration’s most contested issues. New York, NY 10022 Old Broad Street +1 212 909 6000 London, EC2N 1HQ From a decision confirming that investors may restructure their investments +44 20 7786 9000 to take advantage of Bilateral Investment Treaties (“BITs”) under certain circumstances, to a ruling that a third-party funder cannot be deemed Washington, D.C. Moscow to be the proper party to a claim if the funding agreement was entered 555 13th Street, N.W. Business Center Mokhovaya into after the date of filing, and to two decisions considering the seminal Washington, D.C. 20004 Ulitsa Vozdvizhenka, 4/7 +1 202 383 8000 Stroyeniye 2 Abaclat award in the context of complex financial instruments, these latest Moscow, 125009 Paris +7 495 956 3858 developments will no doubt contribute significantly to the evolving body of 4 place de l’Opéra investment law jurisprudence. In this round-up, we provide a summary of 75002 Paris Hong Kong these and other important recent developments. +33 1 40 73 12 12 13/F Entertainment Building 30 Queen’s Road Central Frankfurt Hong Kong Taubenstrasse 7-9 Investment Restructuring +852 2160 9800 60313 Frankfurt am Main In Tidewater Inc and others v Bolivarian Republic of Venezuela (ICSID +49 69 2097 5000 Shanghai Case No. ARB/10/5), the claimant had restructured its investment to take 22/F Jin Mao Tower 88 Century Boulevard advantage of the Barbados-Venezuela BIT by transferring its shares in a Pudong New District Venezuelan company from a Cayman Islands subsidiary to a Barbadian Shanghai 200121 subsidiary, and an ICSID Tribunal found that this was acceptable and that www.debevoise.com +86 21 5047 1800 it therefore had jurisdiction to hear the claimant’s expropriation claim under that BIT. Edition Editors Adopting the approach taken in Mobil Corporation v Venezuela (ICSID Catherine M. Amirfar Case No ARB/07/27), the Tribunal found that the restructuring had taken [email protected] New York, +1 212 909 6398 place after the initial investment, but prior to the time at which the acts of Steven S. Michaels expropriation giving rise to the claim became reasonably foreseeable to the [email protected] claimants. It therefore was not an “abusive manipulation of the system”, but New York, +1 212 909 7265 was permissible. Assistant Editors The case is therefore likely to be of interest to any investors looking to Gavin Chesney take advantage of BITs or other treaty protections, particularly in the face [email protected] of various efforts by certain sovereigns to withdraw from or otherwise curtail London, +44 20 7786 5494 their treaty obligations. Jane Rahman [email protected] The decision also confirms that Article 22 of the Venezuelan Law on London, +44 20 7786 5463 the Promotion and Protection of Investments does not constitute a standing offer to arbitrate, as consistently found by three previous ICSID Tribunals. Third-Party Funding [email protected] In Teinver SA and others v Argentine Republic (ICSID Case No. Please address inquiries regarding topics covered in this publication to the editors or to the article authors. ARB/09/1), the Tribunal was called upon to interpret the Most Favoured All content © 2013 Debevoise & Plimpton LLP. All rights reserved. The Nation clause in the Spain-Argentina BIT, to determine whether it extends articles appearing in this publication provide summary information only and are not intended as legal advice. Readers should seek specific to pre-conditions to arbitration. Endorsing the approach adopted inter legal advice before taking any action with respect to the matters alia in Maffezini v Spain (ICSID Case No. ARB/97/7), the majority of discussed herein. Any discussion of U.S. Federal tax law contained in these articles was not intended or written to be used, and it cannot be used by any taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer under U.S. Federal tax law. Continued on page 3 2 Issue No 2 - May 2013 Arbitration Quarterly Recent Developments in two decisions in cases concerning complex arguments that the sovereign debts at issue Investment Arbitration financial instruments. were not “investments”. Continued from page 2 On 8 February 2013 an ICSID Tribunal In Deutsche Bank AG v. Democratic the Tribunal held that it did, and that the in Ambiente Ufficio SpA and Ors v Argentina Socialist Republic of Sri Lanka (ICSID Case claimant is entitled to look for the most (ICSID Case No. ARB/08/9) confirmed No. ARB/09/2) the Tribunal awarded US$ favourable pre-conditions to arbitration in the compatibility of ICSID arbitration 78 million in compensation for breaches bringing its case. with ‘multi-party’ claims involving several of the Italy-Sri Lanka BIT, in a dispute The majority in Teinver also rejected investors with similar claims against a state. concerning an Oil Hedging Agreement Argentina’s argument that a third-party As one of a number of ICSID arbitrations between Deutsche Bank and Sri Lanka’s funder rather than the claimants was in fact against Argentina comprising multi-party national petroleum corporation. Falling the real claimant, which would have resulted claims (the largest, Abaclat, comprises over oil prices meant that the state party was in the claimants being unable to satisfy the 60,000 claimants), the Ambiente Ufficio left owing Deutsche Bank over US$ 400 jurisdictional requirements of the Spain- claim is brought by 90 investors against million under the agreement. Sri Lanka’s Argentina BIT. Argentina had argued that, Argentina in relation to its treatment of Supreme Court ordered the suspension of in practice, the funder was in fact the only sovereign-debt holders under the Italy- payments while a probe was carried out into party that would potentially benefit if an Argentina BIT. The Tribunal rejected the State’s oil hedging arrangements. This award was made against Argentina. This any suggestion that Argentina needed to non-payment prompted Deutsche Bank to argument was dismissed on the basis that “consent” specifically to such “multi-party” initiate ICSID proceedings. the funding arrangement was implemented claims, finding instead that multi-party Sri Lanka raised jurisdictional after the date of filing of the claim, and arbitration is a generally accepted practice objections arguing that hedging agreements ICSID Tribunals have consistently applied in ICSID arbitration. Such proceedings did not qualify as a covered investment the principle that jurisdiction is determined would be “particularly typical” in cases for the purposes of ICSID arbitration. as of the date of filing. involving widely held instruments such as The Tribunal rejected this argument, government bonds. The decision serves as useful guidance and held that a hedging agreement is an to potential claimants considering obtaining The Tribunal also allowed the claimants “asset” within the meaning of the Italy-Sri third-party funding for their claim.
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