Arbitration Regional Overview: The Americas | International Arbitration Newsletter June 2018

BOLIVIA

Award against Bolivia for mining dispute confirmed

An Ad-hoc ICSID Committee has recently upheld a US$48 million award in favour of Chilean mining company Quiborax against Bolivia in a dispute relating to the expropriation of 11 mining concessions in the Salar de Uyuni region of southern Bolivia.

Brazil

Decision of the Superior Court of Justice of Brazil: tacit consent to the arbitration agreement by a non-signatory third party in cases of abuse of legal personality

In its decision of May 8, 2018 (Special Appeal No. 1,698,730-SP (2016 / 0146726-1), the Superior Court of Justice of Brazil concludes that the formal consent required in the arbitration, which has the purpose of preserving the autonomy of the parties, cannot be used to hide the true intentions of a party, so that it is possible to understand that there is tacit consent of a non-signatory third party to an arbitration agreement  when there is an abuse of the legal personality with the manifest intention of harming the other party (for example with actions tending to conceal assets).

CANADA

British Columbia aligns its International Commercial Arbitration Act with UNCITRAL standards

British Columbia recently passed a bill introducing amendments to its International Commercial Arbitration Act, seeking to align it with accepted international standards, particularly United Nations Commission on International Trade Law (UNCITRAL) Model Law 1985. Proposed changes include the introduction of rules relating to interim measures and the enforceability of such arbitral orders. In addition, the bill clarifies that the possibility for parties to apply to the courts to stay court proceedings in favour of arbitration can be applied for before they submit their first statement on the substance of the dispute.

Irish Pharma ICC arbitration claim defeated by Canadian Valeant Pharmaceuticals International 

Dublin-based Cosmo Pharmaceuticals has lost its ICC arbitration pharma claim against Quebec-based Valeant Pharmaceuticals International and is ordered to pay US$3 million in legal fees.

CHILE

Bolivia’s annulment request denied

An ICSID ad hoc committee has rejected an annulment application filed by Bolivia against an ICSID award issued in favour of Chilean company Quiborax S.A., Mr. Allan Fosk and the Bolivian company Non-Metallic Minerals S.A in  a dispute concerning the Bolivia-Chile BIT.

ECUADOR

Ecuador hit with arbitration on tax and contract issues

It is understood that Ecuador has been hit by a US$250 million arbitration claim filed by Oleoducto de Crudos Pesados (OCP), a major operator of an Ecuadorean oil pipeline in a dispute over tax measures of subordinated debt issued to finance the pipeline. Ecuador’s attorney general’s office has previously disclosed that OCP filed a notice of dispute in 2014 under authorisation and investment contracts, alleging that the government had violated provisions on tax and legal stability.

MEXICO

Mexico hit with BIT claim from Singapore marine services provider

Singaporean marine services provider PACC Offshore Services Holdings (PACC) has recently filed a claim under the Singapore-Mexico bilateral investment treaty after vessels belonging to its subsidiary were seized as part of a fraud investigation targeting Mexican company, Oceanografía, one of Latin America’s largest oil services companies The ships were impounded as part of the ensuing investigation by the Mexican authorities after Oceanografía was accused of obtaining US$400 million in cash advances from Citigroup subsidiary Banamex through falsified invoices for services to Pemex. PACC claims that the government’s actions prevented its subsidiary from continuing to charter its vessels to Pemex and hence, destroyed those investments, and seeks compensation from Mexico for the value of those investments.

PERU

OHL Concesiones files ICSID claim against Perú for major highway contract

Peruvian company Autopista del Norte, a subsidiary of Spanish construction company OHL Concesiones, has recently registered a US$100 million ICSID claim against Peru over alleged delays to a project to improve a stretch of the Pan-American Highway. According to the claimant, it found sections of land that were earmarked for the road, including the planned starting point of construction, had not been acquired, leading to the eventual suspension of the project.

Venezuela

Rusoro seeks enforcement in Texas court

Two months after its US$1.37 billion ICSID award against Venezuela was confirmed in the US, Canadian mining company Rusoro has asked a Texas court to help enforce against the country’s national oil and gas company PDVSA and other “alter egos” of the state which it accuses of fraudulently transferring assets abroad to escape the reach of arbitral creditors. Rusoro filed its complaint in the US District Court for the Southern District of Texas on 7 May against Venezuela, PDVSA and its Delaware subsidiaries PDV Holding and Citgo Holding and Citgo Petroleum, through which the Venezuelan state entity owns interests in various US oil refineries, blending plants, terminals and pipelines.