Dispute Resolution in the International Oil & Gas Business and Boundary Disputes in the Energy Sector
On 19 April 2010 the International Centre for Dispute Resolution (ICDR) and the Association of International Petroleum Negotiators (AIPN) jointly present a panel of international corporate counsel and arbitration experts in an important conference covering many aspects of global energy disputes.
“A State may not expropriate or otherwise
take in whole or in part a foreign private
investment in its territory, or take measures
which have similar effects, except …”
1992 World Bank Guidelines
on the Treatment of Foreign Direct Investment
Recently the Olympic Entertainment Group (OEG) – a Baltic group of company operating casinos in many countries – announced its intention to institute arbitration proceedings against Ukraine (http://www.kommersant.ua/). The ground for filing the claim may be the measures of the state resulted in prohibition of gambling in Ukraine. Respective law was adopted on 15 May 2009 and introduced on 25 June 2009. The above announcement was made on 10 March 2010, and already caused different comments regarding the possible outcomes of the case. Some of my colleagues believe that the Group has no chance to win because the measure were introduced by law, and that law was not challenged before the Constitutional Court of Ukraine. However, there is an alternative opinion, that the mentioned circumstance (no case against the above law in the Constitutional Court) may not be treated as decisive for the tribunal.
The conference is held by Juris Conferences LLC with the support of the International Arbitral Centre of the Austrian Federal Economic Chamber, Young Austrian Arbitration Practitioners, the International Law Institute, Singapore International Arbitration Centre, Hong Kong International Arbitration Centre. It will take place in Vienna, Austria 29 March 2010.
Slovak gas company Slovensky Plynarensky Priemysel (SPP) filed the request for arbitration before the International Court of Arbitration of the International Chamber of Commerce in Paris against Gazprom claiming for damages caused by short delivery of gas during the gas war against Ukraine. SPP calculated the amount of claim (approximately EUR 100 mln of direct damages) and presented it during the negotiations with Gazprom.
By almost any account, arbitration has enjoyed its golden age in the last decades. International commercial arbitrations have soared, arbitrations under bilateral investment treaties have grown, and arbitration of purely domestic matters, especially in the United States, has received increased acceptance. Yet several recent signs suggest that the sun has begun to set on that golden age. Courts have erected some previously unseen barriers to international arbitration. Criticism has been leveled at various aspects of traditional Bilateral Investment Treaties (BITs) and nations have withdrawn from ICSID. And in the United States, Congress currently is considering the most sweeping reform of the Federal Arbitration Act since its enactment.
The ICC YAF and the YAAP jointly organize the conference “Young Approaches to Arbitration” that will take place in Vienna on 27 March 2010.
- Principle of Competenz-Competenz (in light of the Green paper of the Commission);
- The Impact of European Community law on international arbitration;
- Insolvency in international arbitration.
Arbitrators usually are sensitive to arguments about their jurisdiction. Though under the competence-competence doctrine even issues of the existence and validity of the arbitration agreement may go initially to the arbitrators, the authority of an arbitrator arises from a contract between the parties.
If you have sufficient arguments against the jurisdiction of a tribunal present them immediately. Do not be afraid to antagonize the arbitrators. It is much better to resolve the issues of jurisdiction at the beginning of the process, than to face the restrictions on challenging an arbitrator's award on substantive jurisdiction after it is issued.
Arbitration DO’S and DON’T’S
There are checklists of do's and don'ts while drafting arbitration agreement. Probably later we will discuss those very interesting issues. However, in this series we would like to pay your attention to what the counsels may (and in some cases what they must) do after the arbitration process is initiated. In some cases we will illustrate our comments with the practice of particular arbitration institutions and arbitration rules. We will focus not only on the issues related to the strategy and tactics in international arbitration, but also on ethical rules and codes of conduct, since there are a lot of rules for arbitrators, but few for parties and their counsels.
On 15 - 17 March 2010 International Chamber of Commerce (Paris, France) will hold the Masterclass for Arbitrators which is designed for pratitioners who have a strong experience in international commercial arbitration as counsel, but have little or no experience as arbitrators. Because of the advanced level of the training attendees are expected to already master the basic notions of arbitral proceedings, as they will not be reviewed during the Masterclass.
For further information about the event, please contact Charlotte Strandberg, ICC Events at Tel: +33 1 49 53 29 34 or Email: email@example.com