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

Brazil

Brazil´s Superior Court of Justice reaffirms principle of kompetenz-kompetenz

The Superior Court of Justice, which, among other things, is responsible for resolving conflicts of jurisdiction, issued a decision on 7 May 2018 reaffirming the principle of kompetenz-kompetenz.

The decision was issued in relation to the arbitration initiated by several shareholders of Petrobras against  Petrobas and the Brazilian state (the Federal Union) as a result of the depreciation of the value of the company due to Operation "Car-Wash". Petrobras's bylaws contain an arbitration clause that, in the opinion of the Federal Union, could not be extended to the Brazilian State, for which reason it requested (and obtained) before the Arbitral Tribunal had been constituted an interim decision from a federal court in Sao Paulo declaring the nullity of the participation of the Federal Union in the arbitration. The shareholders sought to challenge this interim decision  before the Superior Court of Justice. It held  that the duty of the Judicial Power is to wait for the decision of the Arbitral Tribunal and, only after, carry on the due judicial control.

CHILE

Chile challenges ICSID’s jurisdiction in investment arbitration

The operator of the “Transantiago” transport system in the city of Santiago, Alsacia has commenced an ICSID arbitration against Chile under the terms of the Free Trade Agreement between Chile and Colombia in whichit is seeking over USD 330 million in damages in relation to the provision of  ia fare-dodging monitoring system. .On June 13 Chile filed its defence on the merits and its objection to ICSID’s jurisdiction to hear the dispute.

Quirobax finally “compensated” by Bolivia in mining expropriation dispute

On 7 June  2018 the Bolivian Mining Minister confirmed in a press conference that the Bolivian government had signed a contract agreeing to full and final compensate Chilean mining company, Quiborax, and its Bolivian subsidiary Non-Metallic Minerals in the amount of US$42.6 million in a 12 year-long dispute involving the expropriation of the mining concessions that it held in el Salar de Uyuni, Bolivia.According to Bolivia, its total liability under the ICSID tribunal award issued in 2015 was US$57.2 million but the claimants have agreed to accept a 20% discount on the damages awarded.

GUATEMALA

Iberdrola brings another treaty claim against Guatemala

The Permanent Court of Arbitration has recently published information on an arbitration claim filed by Spanish energy giant Iberdrola back in November 2017 against Guatemala, based on the 2002 Spain-Guatemala bilateral investment treaty.While details of the case remain confidential, it would appear that Iberdrola, as the majority shareholder of a Guatemalan electricity distributor, Empresa Eléctrica de Guatemala, is seeking to pursue a similar claim already filed back in 2009 before an ICSID tribunal, after the state’s electricity regulator set tariffs for the distributor based on a technical study it had commissioned itself, rather than a study commissioned by Empresa Eléctrica.The former ICSID tribunal declined jurisdiction on the basis that they were essentially domestic law claims.

MEXICO

Senate ratifies ICSID Convention

On 22 June 2018 the Mexican Official Gazette published the approval by the Mexican Senate of the ICSID Convention.With this final approval and publication, the internal process of ratification is completed and Mexico became the 162nd country to sign and, the 154th country to ratify this Convention.

PANAMA

Florida Court upholds ICC award obtained by Panama Canal Authority

In an order dated 19 June 2018 the US District Court for the Southern District of Florida held that a request by the Grupo Unidos por el Canal (GUPC) consortium and its Spanish shareholder Sacyr to vacate the US$22 million ICC award in favour of the Panama Canal Authority in one of many disputes over the costs of the Panama Channel expansion project was time-barred as it had not delivered notice of its application within three months of receiving the award, as required by the 1925 Federal Arbitration Act (FAA).

PERU

Kuntur Wasi airport consortium files ICSID claim against Peru

Argentinian-Peruvian consortium and airport concessionaire Kuntur Wasi has recently filed a claim under the 1994 Argentina-Peru bilateral investment treaty against Peru before ICSID following the cancellation of a 40-year concession to build and operate an airport in Chinchero for tourists travelling to Machu Picchu was cancelled on the grounds of national interest.

This is the fifth claim that Peru faces at ICSID, including a recent treaty claim filed by a subsidiary of a Spanish construction company over delays to a project to improve part of the Pan-American Highway.

Venezuela

Tenaris/Talta ask US court to enforce two treaty awards against Venezuela

Two Luxembourg/Portuguese steelmakers have asked the US District Court for the District of Columbia to enforce two ICSID awards worth a combined US$447 million obtained back in 2016 against Venezuela arising from the nationalization of the country’s steel industry.Both cases were brought under Venezuela’s bilateral investment treaties with the Belgium-Luxembourg Economic Union and Portugal.While Venezuela has filed to annul both awards, it has failed to win the continuation of a stay of enforcement in the two proceedings.