Churchill Mining v Indonesia: ICSID Tribunal takes cautious approach to request for provisional measure

On July 8, 2014, a tribunal composed of Professor Gabrielle Kaufmann-Kohler (President), Michael Hwang S.C., and Professor Albert Jan van den Berg (the “Tribunal”), issued a Procedural Order No. 9 denying Churchill Mining PLC and Planet Mining Pty Ltd (“Claimants”) their application for provisional measures. Relying on Article 47 of the ICSID Convention and Rule 39 of the ICSID Arbitration Rules, Claimants asked the Tribunal to “recommend,” among other things, that the Republic of Indonesia (“Indonesia” or “Respondent”) (i) “refrain from threatening or commencing any criminal investigation or prosecution against the Claimants, their witnesses in these proceedings, and any person associated with the Claimants’ operations in Indonesia, including their wholly owned subsidiary (…);” and (ii) “stay or suspend any current criminal investigation or prosecution against Claimants’ current and former employees, affiliates or business partners pending the outcome of th[e] arbitration.” The Claimants also requested more general measures seeking to prevent Indonesia from threatening “the exclusivity” of the ICSID proceedings and generally aggravating the dispute.

At a time where the investor-state dispute resolution system is criticized for permitting too lax an access to treaty-based remedies through arbitration, the Churchill Mining Tribunal showed restraint and caution in addressing Claimants’ request to enjoin a host state from initiating or continuing criminal proceedings against Claimants’ witnesses and potential witnesses. The Tribunal did recognize Claimants’ theoretical right to protection against existing or threatened criminal proceedings that would be likely to impair Claimants’ rights in the arbitration. However, the Tribunal set a high bar for the evidence that Claimants would have had to adduce to establish the likelihood that their rights are indeed put at risk by Indonesia’s actions.

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Filed under Investment Arbitration, South East Asia

Upcoming webinar: Instability in Iraq and the implications for international energy contracts

Tuesday 21 October 2014, London, Dubai, Tokyo

9.30 – 10.30am BST
12.30 – 1.30pm GST
5.30 – 6.30pm JST

As the turmoil in Iraq shows no sign of abating, our panel of expert speakers draw from their own experience in advising clients in the oil and gas sector to consider the implications of this instability on international energy contracts, including:

  • Hydrocarbon legislation in Iraq, including the positions of the Government of the Kurdistan Region of Iraq (KRG) and the Federal Government of Iraq (FGI) in relation to power to legislate and contract for petroleum operations;
  • The legal proceedings launched by the FGI against the KRG and third party purchasers of oil exported by the KRG;
  • The implications of the ICC arbitration initiated by the FGI against Turkey under an Inter-Government Agreement;
  • The impact on international energy contracts of a potential declaration of independence by the Kurdistan Region of Iraq; and
  • The implications of export of oil from Iraq by IS (formerly ISIS).

Speakers:

If you would like to register for this event please contact Jane Webber.

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Law Commission of India proposes wide-ranging changes to the country’s arbitration regime

The Law Commission of India has proposed major amendments to the Arbitration & Conciliation Act, 1996 (the “Arbitration Act”) in order to remedy a number of perceived weaknesses and to stimulate growth in Indian arbitration as a platform for dispute resolution. Its full report is published here. Some of the highlights of the proposed amendments are as follows:

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Filed under Arbitration laws, Arbitrators, Asia, India

Upcoming Webinar: Sanctions Update: Ukraine and Russia

Monday 22 September 2014, 2.00pm – 3.00pm BST

The international sanctions landscape has continued to develop in response to the situation in Ukraine.

On 12 September, the EU and US both published details of expansions to their existing sanctions against Russia, including in relation to the restrictions on certain Russian companies’ ability to access the EU/US capital markets. Both the EU and US have also designated additional individuals and entities under their respective asset freeze regimes.

In this webinar we will provide:

  • An overview of the current sanctions, including the amendments to the EU and US sectoral sanctions
  • An overview of relevant EU institutions and decision-making processes in relation to sanctions
  • An update on any further EU and US developments during the course of this week
  • An opportunity to pose your questions to our expert team.

Speakers:

If you would like to register for this event please click here. We will then send you an email with the event details and confirmation of your log-in address. If you have queries about the webinars or the registration process please contact: Jane Webber, Webinar co-ordinator, London.

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Filed under Public International Law, Sanctions

Upcoming Webinar: The LCIA Rules 2014: what you need to know

Wednesday 24 September 2014, 12.30 – 1.30 BST

The LCIA Rules 2014 come into effect on 1 October 2014 and apply to any arbitration commenced under the auspices of the LCIA after that date. We are pleased to announce that Dr. Jacomijn van Haersolte-van Hof, Director General of the London Court of International Arbitration, will join Paula Hodges QC for an interactive webinar, to discuss the key features of the LCIA Rules 2014 and the implications of the changes.

The speakers will discuss the important developments in the LCIA Rules 2014, including those designed to promote efficient conduct by legal representatives and arbitrators, save time and costs, and deal with the growing complexity and diversity of disputes, as well as looking at the new Emergency Arbitrator process.

The speakers will also consider the implications of the changes to the LCIA Rules 2014 on drafting LCIA arbitration clauses and LCIA proceedings, before dealing with questions.

Speakers:

  • Jacomijn van Haersolte-van Hof, Director General of the London Court of International Arbitration
  • Paula Hodges QC, Head of Global Arbitration Practice, Herbert Smith Freehills LLP

If you would like to register for this event please click here.   For further information about our webinars or the registration process please contact Jane Webber.

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Filed under Arbitration rules

New regulation sets out financial responsibility for investor-state disputes between the European Union and third countries

Today (17 September 2014) a new European Regulation enters into force (EU No 912/2014) with wide-ranging implications for the global investment community. The Regulation allocates financial responsibility going forward, for claims brought by non-EU investors for harm done to their investment within the European Union. Depending on who was involved in the treatment in question – a Member State or a body, institution or agency of the EU itself, responsibility is allocated accordingly.

The rules will only be applied to investor-state disputes brought under agreements to which the EU is itself a party and which incorporate an Investor State Dispute Settlement (ISDS) mechanism. The Energy Charter Treaty (ECT) is one such treaty already in existence and several bilateral investment treaties (BITs) between the EU and third states are in the process of being negotiated, in some cases with a view to replacing the current BITs between EU Member States and third states. This forms part of a wider re-evaluation of investment issues and the relative competences of individual Member States and the EU.

EU Trade Commissioner Karel De Gucht has described the Regulation as “another building block in our efforts to develop a transparent, accountable and balanced investor-to state dispute settlement mechanism as part of EU trade and investment policy.”

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Filed under EU Law, Europe, Investment Arbitration

What if Scotland leaves the UK? Implications for international arbitration and disputes arising from independence

As the referendum on Scotland’s future looms, Herbert Smith Freehills partners Matthew Weiniger QC and Andrew Cannon and arbitration practice manager Vanessa Naish consider the potential implications of Scottish independence for international arbitration there, in England and further afield; as well as the possibility of disputes arising from the independence process itself.

This article was first published on 15 September 2014 in the Global Arbitration Review.

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Filed under Arbitration laws, Europe, Scottish Independence

New Public International Law blog launched by Herbert Smith Freehills’ Public International Law Group

We are pleased to announce that Herbert Smith Freehills’ Public International Law Group has launched a new blog dedicated to know-how and news about public international law. To subscribe to the Public International Law Blog please click here and follow the instructions.

The Public International Law Blog covers developments from around the world on:

  • investment protection and investor-state treaty arbitration;
  • treaty negotiation, interpretation and impact;
  • state immunity;
  • sanctions;
  • international human rights;
  • trade/WTO; and
  • state contracts, stabilisation clauses and disputes

For further information, please contact Dominic Roughton, Partner, or Matthew Weiniger, Partner or your usual Herbert Smith Freehills contact.

Dominic Roughton
Dominic Roughton
Partner
Email | Profile
+81 3 5412 5432
Matthew Weiniger QC
Matthew Weiniger QC
Partner
Email | Profile
+44 20 7466 2364

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Filed under News, Public International Law

Singapore Court of Appeal decides interim awards are enforceable

In the case of PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation (Indonesia) [2014] SGHC 146, the Singapore Court of Appeal considered the enforceability of interim awards under the Singapore International Arbitration Act (the IAA).  This judgment provides a useful analysis of what constitutes an enforceable award in Singapore and helpfully clarifies that an interim award which may be subject to further determination will still be enforced by the Singapore courts.  This is a welcome decision on an issue which remains unsettled on an international level and should provide particular comfort to construction practitioners.

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Filed under Challenges to awards, Enforcement, New York Convention, South East Asia

ICC publishes in-house guide on effective management of arbitration

Practitioners and arbitral institutions alike are constantly looking for ways to smooth and improve the arbitral process. One of the latest contribution to this effort is a June 2014 guide from the International Chamber of Commerce (ICC) entitled “Effective Management of Arbitration: A Guide for In-House Counsel and Other Party Representatives” (the Guide).

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Filed under Arbitration rules, Costs, Document production, Institutions