International Arbitration Newsletter - August 2018 | Regional Overview: The Americas

ARGENTINA

Argentinian Parliament approves new International Commercial Arbitration Act

On 5 July 2018 the Argentinian Parliament (Cámara de Diputados) approved the Project of Law on International Commercial Arbitration, after a process started back in November 2016 and after revision by the Nation´s Senate. The Law (27.449 on International Commercial Arbitration) has been formally published on 26 July 2018 in the Argentinian Official Gazette and is based on UNCITRAL Model Law on International Commercial Arbitration. A link to the Law is available HERE.

Meanwhile, Argentinian domestic commercial arbitration remains regulated by the relevant provisions set out in the Argentinian Civil and Commercial Code.

COLOMBIA

Colombia faces new US$700 million damages ICSID gold mining claim

On 2 July 2018, ICSID registered a claim brought against Colombia by Toronto-based Gran Colombia Gold Corporation (a gold and silver mines investor) under the Canada-Colombia Free Trade Agreement. It is understood thatGran Colombia alleges that the Colombian state failed to maintain public order by preventing strikes and riots which resulted in damage to its property, or to prevent a Marxist armed guerilla group, the National Liberation Army or ELN, from interfering with its gold extraction efforts.

PERU

Enagás files new ICSID claim against Peru

Spanish Energy giant Enagás has served a notice of claim at ICSID under the Peru-Spain bilateral investment treaty over a US$500 million investment in a natural gas pipeline. According to the press release made by the Spanish company, the claim seeks US$265 million damages for harm caused to its stake in the construction of the Gasoducto Sur Peruano pipeline, one of Peru’s largest infrastructure projects, which it had invested in along with Brazilian multinational Odebrecht and Peruvian construction group Graña y Montero. Enagás accuses the government of failing to honour a clause in the concession contract requiring it to auction the concession within one year of the contract’s termination or by 24 January 2018.

ICSID registers new Treaty claim against Peru

On 13 July 2018 Delaware-registered Gramercy Funds Management’s claim under the 2006 Peru-US free trade agreement was registered online by ICSID, even though it is believed that this $1.8 billion claim brought against Peru by the US hedge fund has been administered by ICSID for the last two years. The claim relates to the Peruvian State default of bonds that were issued to Peruvian citizens as compensation for large areas of farmland that had been expropriated from 1969 onwards by the military government of General Juan Velasco.

URUGUAY

Uruguay passes UNCITRAL-model law-based international commercial arbitration Act

Uruguay has passed its Act governing international commercial arbitration after its upper house, the Chamber of Senators, signed off on the draft in May. The bill is based on the 1985 UNCITRAL Model Law with certain elements incorporated from the 2006 edition.It is the first time that a piece of legislation governing international commercial arbitration has been passed in Uruguay. In 2004, an arbitration bill received approval in in the lower house but was rejected by the country’s congress.

USA

US court asked to enforce ICDIC award against Petrobras

Cayman offshore drilling company Vantage Drilling International filed a petition in the Southern District Court of Texas to enforce a US$662 million ICDR award against Petrobras over the early termination of a contract that the Brazilian state-owned company alleges was procured through bribery.

The dispute relates to a 2009 drilling services contract under which Vantage leased Petrobras the deepwater drilling ship Titanium Explorer for eight years. Petrobras terminated the contract in August 2015, with more than five years of the lease period still to run, after Vantage announced it had reported itself to the US Department of Justice (DOJ) and Securities and Exchange Commission (SEC) in connection with revelations that its agent in Brazil had entered into a plea agreement with Brazilian authorities over his role in obtaining bribes for former Petrobras executives.

Venezuela

Miami court enforces partial Venezuelan mining award

On 18 July 2018 the Miami division of the US District Court for the Southern District of Florida ordered the enforcement of a US$63 million partial award against Ferrominera Orinoco (FMO), a Venezuelan state-owned mining company, after the costs of an iron ore project with a British Virgin Islands commodities company, Commodities and Minerals Enterprise (CME), soared following the death of Hugo Chavez in 2013. The US Court ordered FMO to pay CME almost US$63 million in securities into an escrow account until their dispute over iron ore is resolved – recognising both the difficulty the BVI company might face enforcing a final award and the financial hardship it would encounter if the award were not enforced.