International Arbitration Newsletter - September 2021 | Regional Overview: The Americas
The most relevant updates of The Americas from the global International Arbitration and ADR practice group at Garrigues.
Chilean Supreme Court recognizes German arbitration award
The Chilean Supreme Court has granted recognition in Chile of an international arbitration award issued by a German panel of the Hamburg Stock Exchange’s Goods Association (Waren-Vereins der Hamburger Börse e.V.).
The case concerned a contract breach by the Chilean grape exporter Las Tinajas Ltda. against German company Schroeder KG. (GMBH & CO). Under the contract the parties had agreed that conflicts were to be resolved under German law by an arbitration panel.
The recognition was based exclusively on the rules for recognition contained in the Chilean International Commercial Arbitration Act (Law N°19.971), based on the Convention for the Recognition and Enforcement of Foreign Arbitral Awards In so doing, the Court held that these rules prevail over the exequatur rules contained in the domestic civil procedure codethereby leaving behind a judicial tendency regarding the recognition of foreign awards and strengthening international arbitration in Chile.
French shareholders of airport concessionaire consortium file for ICSID arbitration
French companies ADP International S.A. and Vinci Airports have commenced an ICSID arbitration against the Republic of Chile. ADP International S.A., a subsidiary of the French state-controlled company Groupe ADP, Vinci Airports and Italian company Astaldi are owners of the Chilean consortium Nueva Pudahuel. In 2015 Nueva Pudahuel was granted a 20-year concession for the execution, repair and operation of the International Airport Arturo Merino Benítez, Chile’s main Airport, located in Santiago.
Given the impact that the pandemic has had on the airline industry, ADP and Vinci has filed for ICSID arbitration against Chile under the 1992 investments treaty between Chile and France, claiming that Chile has breached the terms of the treaty by refusing to reestablish the economic-financial balance of the concession and claiming this would prevent future investments and jeopardize the airport’s operation.
ICSID and CAM Santiago enter into an institutional cooperation agreement
InternationaI Centre for the Settlement of Investment Disputes (ICSID) and the Center for Arbitration and Mediation of Santiago’s Chamber of Commerce (CAM Santiago) have entered into a cooperation agreement to promote investment arbitration through events and specialized courses. It also allows both institutions to use one another’s headquarters. This agreement is in line with article 63 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which provides that the parties can agree for the procedure to take place in an institution with which the ICSID has signed an agreement.
Halliburton files for arbitration against Ecuadorian national oil company
A Quito-based subsidiary of US giant Halliburton, Servicios Petroleros Igapó, has brought an UNCITRAL arbitration claim against Ecuador’s national oil company, Petroecuador, before the Permanent Court of Arbitration (PCA).
This is the second UNCITRAL arbitration initiated against Petroecuador at the PCA in the last year as the national oil company received another claim brought by Quito-based oil and gas company Kamana Services.
In addition, local news outlets reported earlier this year that EcuadorTLC, an Ecuadorean subsidiary of Argentinian Pampa Energía, had also filed a US$ 122 million claim against Petroecuador at the Arbitration and Mediation Center of the Quito Chamber of Commerce.
These cases coincide with Ecuador’s change of government and its decision to re-join the ICSID Convention.The Ecuadorian Legislature has condemned the government’s decision and has announced the parliament’s intention to challenge the executive’s decision and denounce the treaty’s ratification.
Mexico hit by another potential treaty arbitration
Talos Energy Inc. (Talos) and Talos International Holdings SCS have submitted notices of dispute to the government of Mexico under the agreement between the United States of America, the United Mexican States and Canada (USMCA) and the bilateral investment treaty between the United Mexican States and the Belgo-Luxembourg Economic Union (BLEU-BIT) over decisions taken by the Mexican Ministry of Energy (SENER), including the recent designation of Petróleos Mexicanos (PEMEX) as the operator of the Zama oilfield.
The zama oilfield has a production potential of up to one billion barrels of oil and was discovered by Talos and notified to the National Hydrocarbons Commission (CNH) in July 2017. The CNH subsequently notified Talos of the possible existence of a shared oilfield with an area assigned to Pemex Exploración y Producción (PEP).
In December 2019, following the carrying out of an evaluation, Talos confirmed the existence of a shared oilfield.
Since then, Talos has been operating the shared field as per the interim pre-unitization agreement reached between PEP and Talos pending a final unitization agreement being entered into by PEP and Talos and approved by SENER. The recent designation by SENER of PEP as operator of the Zama oilfield, however, allegedly causes loss or damage to Talos as an investor and as the operator under the operating agreement with PEP).
Mexico´s Hydrocarbons Act contains a provision regarding the dispute resolution methods to be followed in exploration and extraction contracts. While it is open for such contracts to contain alternative dispute resolution clauses, the parties must select Mexican federal law as the applicable law, and specify that the proceedings shall be held in Spanish (Article 21). Article 22 of the Act further states that any dispute related to government termination of exploration and extraction cannot be subject to arbitration.
The CNH has since made several modifications to the terms and conditions of exploration and extraction contracts. Final versions included an experimental arbitration clause providing for any dispute arising from or relating to such a contract that has not been resolved within three (3) months after the commencement of the conciliation period or that it would have been rejected by any party in terms of article 26.2, it shall be resolved by arbitration pursuant to the UNCITRAL regulations. The parties agree that President of the International Court of Justice shall be the nominating authority for the arbitration proceeding. The applicable substantive law shall be as provided in article 26.1 [“this contract shall be governed by and construed in accordance with the laws of mexico.”], and disputes shall be resolved strictly according to law. The arbitral tribunal shall consist of three members, one named by CNH, another named jointly by the operator and the participating companies and the third (who shall be the President of the tribunal) named in accordance with the UNCITRAL regulations. The arbitration proceeding will be conducted in Spanish and the seat of the arbitration shall be the city of the Hague in the Kingdom of the Netherlands.
In light of the forgoing, there would to be at least three different dispute resolution processes that could be pursued in the Zama dispute:
a) investment arbitration under the USMCA or the BLEU-BIT;
b) commercial arbitration subject to an experimental arbitration clause under the alos contract and
c) Court proceedings before Mexican courts to overturn SENER’s designation of PEP as the operator of the Zama oilfield.
Second ICSID arbitration filed against Peru over Lima Metro
Spanish construction companies ACS and FCC, together with Italian companies Impregilo and Ansaldo, have initiated a second arbitration against Peru over the Lima Metro Line 2 project.
Peru prevails over Hydrika on jurisdictional grounds
Peru has successfully defeated an ICSID arbitration brought against it by Hydrika, a subsidiary of the Miami-based IBT Group. Hydrika filed for ICSID arbitration for alleged delays in the construction permits for six hydroelectric power plants (5 in the Las Pampas area and 1 in the Pallasca area). While the award has not been published on the ICSID website, it is understood that the arbitral tribunal's decision was based on the fact that Hydrika could not combine its claims to comply with the contractual requirement that the dispute brought to ICSID must exceed US$ 20 million.