International Arbitration Newsletter - February 2021 | Regional Overview: Asia Pacific

CHINA

CIETAC and AIA renew their Cooperation Agreement

China International Economic and Trade Arbitration Commission (CIETAC), and the Italian Arbitration Association (“AIA”) held an informal discussion recently via video teleconference and a ceremony to renew a Cooperation Agreement.

The Cooperation Agreement was initially signed in 1981, and its renewal is of great significance at a time when the spread of the COVID-19 pandemic has caused a severe impact on the world economy. With the growing number of disputes on trade and investment affairs affected by the pandemic, arbitration, with its unique advantages, will become an important or even the primary choice for international commercial subjects to resolve disputes. Meanwhile, the strengthening of cooperation between CIETAC and AIA under the new global situation will promote the further development of economic and trade cooperation between China and Italy as well.

LAOS

Laos tries to block second claim

The State of Laos has asked the High Court of Kuala Lumpur for an injunction to prevent Thai-Lao Lignite (TLL), a Thai coal-mining company, from initiating another UNCITRAL arbitration, which the State considers “abusive” and is estimated to be over US$ 450 million, over a power plant project.

Laos contends that TLL is estopped from bringing this second arbitration related to a 90s coal power plant contract. For its part, TLL alleged that Laos wrongfully terminated the agreement, failed to provide governmental support for the project and colluded with another Thai investor, Banpu group, to push TLL out of the project. Finally, a Kuala Lumpur-seated UNCITRAL tribunal ruled in favour of TLL awarding the claimant US$ 56 million.

However, the High Court of Kuala Lumpur set aside that entire award in 2012, concluding that the tribunal had exceeded its jurisdiction by awarding damages under other contracts. In 2017, the Federal Court of Malaysia upheld that ruling. Laos also prevailed in other jurisdictions including in London in 2018.

In this new arbitration, TLL says that neither the validity nor the enforceability of the arbitration agreement has been challenged either by the State or by any of the national courts that have decided to set aside or reject the enforcement of the previous award. For that reason TLL says that it can file a fresh claim.

Laos’ injunction is based on the fact that this new claim is time-barred, that the earlier proceedings had said the final word on the matter and that this new claim is an abuse of process that would result in TLL’s unjust enrichment to TLL, who was already awarded damages from Banpu before the courts of Thailand.

INDIA

SIAC emergency order is enforced in India

An interim order has been issued by the Delhi High Court in favour of Amazon against its Indian business partner named Future Group, an Indian retail and fashion conglomerate, to enforce a SIAC emergency order constraining Future Group from proceeding with the sale of its US$ 3.4 billion worth of assets.

In August of 2020, Future Retail announced the sale of its assets to Reliance for US$ 3.4 billion, a deal that Amazon believes to have violated the Shareholder Agreement in 2019, which stipulated that Future Retail’s assets cannot be transferred without Amazon’s consent. Afterwards, Amazon initiated SIAC proceedings in October of 2020 and shortly thereafter obtained an order from an emergency arbitrator that prohibited Future Retail from taking further steps to complete the disputed transaction.

South Korea

US real-estate investor threatens South Korea with an ICSID claim

A naturalised US national has threatened to bring an ICSID claim against South Korea after the State forced him to sell his apartment block, for which he payed US$ 912,000, to make way for the US$ 8 billion expansion of Busan’s port.

The investor objected to the Busan Regional Construction and Management Administration’s (BRCMA) notice regarding the property and BRCMA sued the investor before the Busan District Court. Despite the objections, after valuing the building, BRCMA concluded that the investor was due US$ 1.3 million in compensation. However, the investor argues that it was excluded from the valuation process and that the government is forcing the sale of the property “way below market price”. The investor, who has also described BRCMA’s actions to some sources as “arbitrary, grossly unfair, unjust, idiosyncratic, discriminatory and lacking in due process”, will now argue that Korea is in breach of the FTA’s national treatment and fair and equitable treatment principles. 

The investor now seeks damages of up to US$ 4.2 million in compensation for the market value of the property plus tenants’ security deposits and monthly rents.