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

MEXICO

Mexican faces new NAFTA claim from two subsidiaries of U.S. Vulcan Materials

Two subsidiaries of Vulcan Materials, one of the US’s largest producer of construction aggregates have filed notice of dispute under NAFTA’s chapter 11 against México.The dispute relates to a construction contract signed by Vulcan with Mexican construction conglomerate Grupo ICA to build a limestone extraction plant on the site, along with a port terminal and a fleet of ships to allow for the export of 12 million tonnes of limestone to the US annually. Vulcan claims that Mexico has taken a number of adverse and illegal measures that have severely affected its investments and operations in the country. In 2003 the Mexican government unilaterally amended the terms of the Quintana Roo port operator and began collecting port fees that Calica was entitled to receive from ships docked at its port terminal. Should the claim proceed, it will go to ICSID.

PERU

Peru defeats private prison concession claim from Exeteco International

Peru has defeated a US$50 million UNCITRAL claim brought by Spanish investor Exeteco International under the Spain-Peru bilateral investment treaty over the withdrawal of its concession for the construction and management of the country’s first private prison. The dispute related to a concession awarded to Exetco and two other Spanish companies, Eulen and Montealto, in 2011 to construct and manage Peru’s first private prison in the central town of Huaral, near the capital Lima. Exeteco filed the arbitration in 2013 after the Peruvian government reversed the privatisation process and took the prison back into public ownership.

PANAMA

ICSID tribunal dismisses treaty claim against Panama on ecotourism resort

An ICSID tribunal has dismissed a US$100 million claim brought by investors in Desarrollo Ecoturístico Cañaveral (Decsa), a Panamanian company established to develop a multimillion-dollar resort in Panama’s Ngäbe-Buglé nature reserve near the Bocas del Toro archipelago, against Panama.Claims were brought in 2015 under the Netherlands-Panama bilateral investment treaty of 2000 and the Central America-Panama free trade agreement of 2002 and related to alleged state’s actions that would have triggered a series of adverse consequences for the project, including the invasion of the land by certain indigenous people.

URUGUAY

Uruguay threatened with expropriation claim

Panama-registered Latin American Regional Aviation Holding (Larah), which is understood to be controlled by New York private equity firm Tenor Capital Management, has submitted a notice of dispute before ICSID to bring an investment treaty claim against Uruguay under the 1998 Panama-Uruguay bilateral investment treaty over the renationalisation of an airline.The dispute relates to the alleged expropriation of former national airline Pluna Líneas Aéreas Uruguayas, in which the investor held an indirect 75% stake, shortly before it went bankrupt in 2012. The notice triggers a six-month cooling off period under the BIT, which provides for both ICSID and UNCITRAL arbitration.

VENEZUELA

Exxonmobil resubmits oil Treaty claim against Venezuela

On 24 October 2018 ICSID registered a re-submitted claim filed by ExxonMobil against Venezuela under the Netherlands-Venezuela bilateral investment treaty, after an annulment committee dramatically slashed US$1.4 billion from an award the oil group secured in 2014, concluding that the original tribunal had exceeded its powers.

ExxonMobil originally filed an ICSID claim in 2007, seeking $16 billion in damages for Venezuela’s alleged expropriation of its investments in the Cerro Negro and La Ceiba oil projects in the Orinoco belt. While the award was successful, a US appeals court reversed that decision in June 2017– ruling that creditors of foreign states are not permitted to enforce ICSID awards on an ex parte basis under the US Foreign Sovereign Immunities Act of 1976.