Thursday, 9 October 2014

New Zealand already under TPPA International Committee for Settlement of Investment Disputes (ICSID) arbitration tribunal that operates under the umbrella of the World Bank.

For my fellow citizens and businesses of honest enterprise you are being eaten alive by foreign financial ticket clipping middlemen.
The senior elements of banking empire cartel have control of New Zealand under conditions of receivership via its International Monetary Fund (IMF) receivership branch. It is backed up by an old boy's Commercial Contract Law network known as the International Committee for Settlement of Investment Disputes (ICSID) that operates under the umbrella of the World Bank.
The World Bank and IMF are conduit institutions that can be traced back to the senior most institutions of the British colonial era old boys private central banking network that are owned by the family trusts of the worlds ultra-inter-generational-wealth-families.
The World Bank gives out the predatory interest-bearing soft loans of counterfeit credit in excess of the productive natural resource capacity of the target nation to ever be able to repay.

Then when the mathematically inevitable bankruptcy receivership occurs the IMF is put in charge of bankruptcy receivership. Supposedly assisting you to trade your way out of your financial troubles.
However the former World Bank Vice President - Joseph E. Stiglitz - has stated that the IMF is the hospital that makes you sicker and quite clearly has ulterior motives than those that are publicly stated;
Joseph E. Stiglitz - "I watched carefully what the IMF had done, the mistakes that it had made in crisis countries in East Asia, Latin America, Africa and the economies in transition. The mistakes were sufficiently frequent that they clearly weren’t just an accident – as an academic you look for patterns.
There were a couple of obvious explanations. One was that they were incompetent, stupid people. But that argument is just not persuasive – they pay among the highest wages, they get good people.
You could say it was bad economic models. But there is an array of economic models out there and they chose to use ones that led to wrong predictions, wrong policies and really negative consequences.
So why did they choose them? One is left with a possible answer that they had different objectives, that their objective in going into a country was not, for example, to keep employment as high as possible or to minimize poverty."
And then of course it all starts to make sense. You ask: ‘Who makes the decision, and on whose behalf do they make those decisions?’ You look at the decision-making structure – at the IMF the United States is the only country with a veto, other countries are represented by central bank governors and finance ministers. They were looking at the world with a particular perspective, a particular ideology that was in accord with their interests. And their interests were to make sure the creditors got paid. That took precedence over what would be good for the country.
End quote
By 1961 in New Zealand the predatory lending of counterfeit credit had run New Zealand into bankruptcy receivership. At which time it was put under IMF receivership Structural Adjustment Program that I would argue they have since traded New Zealand even deeper into financial trouble on purpose to force it to sell its public assets on the open market at fire-sale prices.
These procedures are enforced by international arbitration courts in which commercial contract law supersedes individual human rights common law.

Despite compelling evidence to the contrary there has since 1961 been contradicting denials and admissions by successive governments of New Zealand around the growing influence of the conduit institutions of external creditors over our nation.

The New Zealand Economy, A Personal view, book by Rob Muldoon 1985
Page 33-34;
page 52;
The fact that even in good years we did not show an overall surplus on our external current account and had to borrow and even draw from the IMF was also of concern, so that we were forced to move to restrain not just consumption, but capital development as well.
page 61;
It was in 1967 that, as a result of the wool slump, we borrowed into the higher tranches by way of drawings from the International Monetary Fund and gave the fund a controversial letter of intent. The semantics of a letter of intent as debatable then as they are today when the Fund has some 40 such arrangements. When the left wing politicians and academics claimed that the Fund had laid down conditions before permitting us to draw in the higher tranches, I insisted, as did the Fund, that it was up to the Government of the member country to indicate the policies that it would pursue in order to restore balance to its economy, while the Fund made its decision on whether or not to agree to the drawings in light of the policies that were proposed.
End quote

I sent this email to Minister of Finance Michael Cullen 4 September 2007 ;
Regards Dr Cullen,
1) I am seeking any information now eligible for release, regarding the secret Memorandums of understanding, or Structural adjustment programs imposed upon us by the IMF/World Bank during the restructuring of our(NZ) nations debts or what was essentially liquidation, in 1961 and 1984?
2) To your knowledge, the money used by registered bond traders, who are the only ones eligible to purchase the larger blocks of our govt bonds, all of whom are the private stakeholders of what is referred to as the "Central banking system", to your knowledge does this so-called "Power money" have any net tangible backing, or is it merely created as digital bits on a computer, then loaned into the system as interest-bearing debt, only given its value by the promised repayment out of the future taxes of the nation.?
Yours sincerely
Iain Parker
I received this reply from the Acting Minister of Finance Trevor Mallard 2 October 2007 ;
Dear Iain Parker
Thank you for your letter which was received on 5 September 2007 concerning an Official Information Act request. You requested:
1) I am seeking any information now eligible for release, regarding the secret Memorandums of understanding, or Structural adjustment programs imposed upon us by the IMF/World Bank during the restructuring of our(NZ) nations debts or what was essentially liquidation, in 1961 and 1984?
2) To your knowledge, the money used by registered bond traders, who are the only ones eligible to purchase the larger blocks of our govt bonds, all of whom are the private stakeholders of what is referred to as the "Central banking system", to your knowledge does this so-called "Power money" have any net tangible backing, or is it merely created as digital bits on a computer, then loaned into the system as interest-bearing debt, only given its value by the promised repayment out of the future taxes of the nation.?
New Zealand joined the IMF and the World Bank in 1961. There was no financial crisis in New Zealand at the time and New Zealand did not restructure its debt as a result of joining. There are no secret memoranda of understanding and no structural adjustment programmes were imposed on New Zealand. All the documents related to the decision to join the two institutions are publicly available from Archives New Zealand.
In June 1984, New Zealand drew down its Reserve Tranche at the IMF. The Reserve Tranche is essentially a country's foreign currency deposit with the IMF and can be drawn on at any time for balance of payments reasons without requiring approval from the IMF board. There is no conditionality attached to such a drawing and so no structural adjustment programme was imposed.
Once again, all relevant documents are publicly available at Archives New Zealand.
Accordingly, I have decided to refuse your request under section 18(d) of the Official Information Act 1982 - that the information you requested is or will soon be publicly available.
In response to your second question, registered bidders in New Zealand government Bond tenders purchase New Zealand government bonds using cash which they get from their shareholders, from profits on their operations or from borrowing against future income. Please note that bidders may purchase bonds on their own behalf or on behalf of other investors. The bonds are issued on behalf of the Crown by the New Zealand Debt Management Office (NZDMO). The Reserve Bank conducts the bond tenders as agent for the NZDMO. When the bonds mature, the Crown repays them with funding from a variety of sources, such as its cash surplus, revenue from taxation and other sources or by undertaking new borrowing. Interest on the bonds is paid from the same sources.
This fully covers the information you requested.
Yours sincerely
Hon Trevor Mallard
Acting Minister of Finance.

On the 5 October 2007 I sent this reply to Trevor Mallard;
Regards Hon Trevor Mallard,
Could you please advise me, as to whether you researched and provided this answer yourself, thus are prepared to stake your present and future political reputation on it, or was it provided by one of the many State Sector advisers at your disposal. If the latter is the case, could you please provide me with the name and department of the author.
Thank you
Iain Parker
I then received on 10 October 2007 this reply from Michael Cullen;
Dear Mr Parker
I have received your email regarding the answer to your Official Information Act Request which was signed out by the Hon Trevor Mallard in my absence.
I am satisfied with the contents of the reply that you received from my acting minister. This request was dealt with under the standard procedures for replying to requests under the Act.
In this case, the draft reply was prepared on my behalf by Andrew Turner, Head of Portfolio Management at the Treasury.
Yours sincerely
Hon Dr Michael Cullen
Minister of Finance
end quotes

This information below from the New Zealand parliamentary record makes it clear that the above rebutting of the growing control by the IMF over New Zealand economic affairs was misleading and makes very clear that IMF regulation now becomes automatic financial system law within New Zealand without having to pass through the New Zealand parliament to be debated or voted upon;
New Zealand Minister of Finance the Hon BILL ENGLISH said in the debate;
“I intend to move that the bill be referred to the Finance and Expenditure Committee. Our commitments to the IMF are effectively premiums to an insurance policy against damage to our economy from an unstable world....... New Zealand has already agreed to these changes, and adopting the International Finance Agreements Amendment Bill simply puts that agreement into practice......The bill also creates a regulation-making power in the principal Act so that further updates to the articles can be made by regulation. This power will simplify the process by which New Zealand meets its obligations. Once changes to the articles are agreed to by the requisite majority of members of the international financial institutions, New Zealand will be bound by the amendments, which means that we are required to bring our domestic legislation into line with our international obligations.”

New Zealand opposition party finance spokesperson Hon DAVID PARKER (Labour) said in debate;
“I rise to speak to this bill, the International Finance Agreements Amendment Bill, on behalf of the Labour Party. The Labour Party will be supporting this bill to the Finance and Expenditure Committee. The Labour Party supports the function of the International Monetary Fund and the International Bank for Reconstruction and Development and broadly agrees with the Minister of Finance that these are good institutions that assist the conduct of international economic affairs in a way that benefits New Zealand as well as other countries......I think New Zealanders will have more confidence in our participation in these international fora if they think that Governments are being transparent about changes to those international agreements and the effect of those changes on New Zealand. There is already enough suspicion out there as to the effect of international agreements. We breed further suspicion if we are not open and transparent about changes to those rules......For those reasons, amongst others, the Labour Party opposes future changes to this legislation by way of the statutory regulation-making power that this amendment Act creates. We believe that future amendments ought to come back to this Parliament. If we look back in the history, it has not been an onerous task for New Zealand to amend this legislation through annual amendments or anything like that. It is relatively rare that we have amendments to this International Finance Agreements Act, which dates back to 1975. “
end quotes

New Zealand Green Party Co-Leader - Russel Norman - having displayed a sense of growing environmental and social injustice - had “come out” - asking hard questions of the current money system orthodoxy after his 21 Feb 2013 International Finance Agreement Amendment Bill third reading - in which Russel Norman admitted to having only recently gained an understanding of just how New Zealand money supply originates and under what terms and conditions;
"The other thing that comes out of, I think, the IMF that surprises a lot of people is when the IMF says things like most of the money that is generated is generated by the private banks. Most of us, I think—and I was certainly one of these people, until reading IMF papers—always assume that the Government created the money. That is just because I actually did not follow it closely enough, whereas the IMF is very clear that it is the private banks that create most of the money. What the IMF—or, at least, some of the researchers within the IMF—is now saying is that the Government should use its ability to create money, so that there is some publicly created money as well as the privately created money, most of which is created by the private banks.
This, of course, is a pretty radical proposition, and the IMF, in putting forward this proposition, has certainly been shaking the policy debates around monetary policy all over the world, except in New Zealand, of course, where we are kind of locked into some weird backwater where the Government does not want to have a debate around any of this kind of stuff. But if you read the international literature, it is pretty good."
end quote

Russel Norman made clear his views again - and clearly had not yet buckled - in this 27 May 2013 article;
"In the debate around monetary policy, it is often forgotten that the default position is that the private banks create most of the money and lead the increase in the monetary supply. They then charge interest to the users of the money that they have created......The debate should be: what constraints should apply to the private creation of money given the banks’ irresponsible behaviour in the past; and should the public institutions be expanding money supply as a policy tool, to what extent, and to what purpose? Should the state be allowed to also increase the money supply for public purposes such as refilling the Natural Disaster Fund and to see what effect it can have on reducing the very damaging high NZ dollar?
The answers to these questions aren’t black and white but for my pick I think we need to restrain the banks lending into the housing bubble and use a trial public creation of money to restock the Natural Disaster Fund – both to be prepared for future disasters and to see what impact it would have on the dollar.
It is of course difficult to have a rational conversation around these issues in the current political context (ie Key’s scaremongering) but it is an important conversation for rational adults to have. We do have an out of control current account deficit and if we want to be masters of our own destiny we need to change policy settings as under Key’s plan our deficit and debt increase dramatically."
end quote
To understand how a New Zealand old boys network of lawyers are already busy on global arbitration panels confiscating the commonwealth essentials of life natural resources of nations on behalf of intra-national corporations that are party related to the British colonial heritage old boys private central banking network please read the details below of the New Zealand Arbitration (International Investment Disputes) Act 1979 and loss of economic sovereignty that has resulted.
An Act to implement an international Convention on the settlement of investment disputes between States and nationals of other States
1Short Title
This Act may be cited as the Arbitration (International Investment Disputes) Act 1979.
2 Interpretation
In this Act, unless the context otherwise requires,—
award means an award made pursuant to the Convention; and includes—
(a)any decision made pursuant to the Convention that interprets, revises, or annuls an award; and
(b)any decision as to costs that, pursuant to the Convention, is to form part of an award
Centre means the International Centre for Settlement of Investment Disputes established pursuant to the Convention
Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States that was opened for signature in Washington on 18 March 1965, a copy of the English text of which is set out in the Schedule.
3Act binds the Crown
This Act binds the Crown.
Section 3: substituted, on 15 November 2000, by section 3 of the Arbitration (International Investment Disputes) Amendment Act 2000 (2000 No 52).
The Trans-Pacific-Partnership-Trade-Agreement (TPPA ) being negotiated by governments behind closed doors in secret, is in my opinion an attempt by the banking cartel pyramid fraudsters to boost the power of intra-national commercial contract law institutions in order to make it harder for nation states to take back what they have had stolen from them under false pretenses.
The New Zealand government signed up to the International Committee for the Settlement of Investment Disputes - ICSID - in 1970 - ratifying in 1980 – that has seen New Zealand lawyers involved global arbitration processes that have more often than not seen the findings fall in favour of corportions under very questionable circumstances;
Chapman Tripp acts in first ever bilateral investment treaty hearing held in New Zealand
27 April 2012
Leading New Zealand law firm Chapman Tripp, acting as co-counsel with international law firm Salans, have secured a successful decision in the first ever bilateral investment treaty arbitration hearing held in New Zealand.

Chapman Tripp obtains first NZ subpoena of witness for foreign arbitration

02 March 2015
In a first for New Zealand, Chapman Tripp has obtained a High Court order of subpoena requiring a New Zealand-based witness to provide evidence for an international arbitration tribunal sitting in London.
New Zealand’s Arbitration Act 1996 expressly authorises the High Court to issue orders of subpoena, but only for New Zealand-seated arbitrations.  The order was accordingly obtained using procedures in the Evidence Act 2006 for giving effect to letters of request from a foreign “requesting court”, which is defined as “any court or tribunal exercising jurisdiction in a country or territory outside New Zealand”.  In this case, a letter of request was prepared and sent by the LCIA arbitral tribunal to the New Zealand High Court.
Chapman Tripp litigation partner Daniel Kalderimis successfully argued that a foreign arbitral tribunal qualified as a requesting court.  The High Court agreed, holding that the limited scope of the Arbitration Act procedure did not preclude use of the Evidence Act procedure, and electing not to follow overseas authority – informed by the Hague Evidence Convention, to which New Zealand is not (yet) a party – holding that private arbitral tribunals are not requesting courts.   
The witness’s evidence was given in the form of examination in New Zealand, from Chapman Tripp’s offices, with the LCIA arbitral tribunal and counsel in the London arbitration participating live by audio-visual link.
A copy of the High Court decision can be found here.
Panel of Arbitrators
Designation effective November 12, 2013:
Campbell Alan McLachlan
ICSID: Details of operation and costs of cases.
By Inna Uchkunova, International Moot Court Competition Association (IMCCA)
“Research is formalized curiosity…” – Z. Hurston
In what follows I have tried to gather information from publicly available sources regarding some of the questions which have troubled my mind lately. It is hoped that the results would be of interest to the readers. For me, this proved to be one of my most exciting projects so far. The idea was conceived during my work in the IMCCA – Bulgaria (International Moot Court Competition Association) which unites past and present Ph. C. Jessup Moot Court participants (as well as participants from other moot courts) who share their love for International Law in a country where it is not lectured in-depth in universities. IMCCA and America for Bulgaria Foundation provide us with the necessary stimuli to learn more and to achieve more.
The information presented is subject to the caveat that not all ICSID awards are public or may have otherwise escaped my acquisition efforts. In this and any other regard, I would appreciate further supplement or corrections.
Which arbitrators have sat the most in ICSID cases?
(in alphabetical order, including cases which have been settled)
Alexandrov, Stanimir A.
Álvarez, Henri C.
Berg, Albert Jan van den
Berman, Franklin
Bernardini, Piero
Böckstiegel, Karl-Heinz
Brower, Charles N.
Crawford, James R.
Cremades, Bernardo M.
El-Kosheri, Ahmed Sadek
Fernández-Armesto, Juan
Fortier, L. Yves
Gaillard, Emmanuel
Griffith, Gavan
Guillaume, Gilbert
Hanotiau, Bernard
Kaufmann-Kohler, Gabrielle
Lalonde, Marc
Lowe, Vaughan
McLachlan, Campbell
McRae, Donald M.
Naón, Horacio A. Grigera
Oreamuno, Rodrigo
Paulsson, Jan
Stern, Brigitte
Tercier, Pierre
Thomas, J. Christopher
Veeder, V.V.
Vicuña, Francisco Orrego
Williams, David A.R.
Wobeser, Claus von
Who is the first woman to sit as an arbitrator in an ICSID case?
Mme Rosalyn Higgins in 1987, in the resubmitted Amco case.
It is noticeable that international arbitration remains a man-dominated profession.
Which is the Claimant which has filed the most applications?
Impregilo, S.p.A has appeared as Claimant in 5 cases so far (most of them discontinued):
Impregilo S.p.A and Rizzani De Eccher S.p.A. v. United Arab Emirates(ICSID Case No. ARB/01/1)
Impregilo S.p.A. v. Islamic Republic of Pakistan (ICSID Case No. ARB/02/2)
Impregilo S.p.A. v. Islamic Republic of Pakistan (ICSID Case No. ARB/03/3)
Impregilo S.p.A. v. Argentine Republic (ICSID Case No. ARB/07/17)
Impregilo S.p.A. v. Argentine Republic (ICSID Case No. ARB/08/14)
Which is the State appearing the most times as a Respondent?
(includes cases which have been settled or discontinued)
Argentina 49
Venezuela 36
Egypt 17
Ecuador 12
Congo 12
Peru 11
Ukraine 10
Curious facts regarding the composition of some of the Tribunals
● All the initially appointed arbitrators in the cases MTD v. Chile (ICSID Case No. ARB/01/7), Vannessa Ventures v. Venezuela (ICSID Case No. ARB(AF)/04/6) and Víctor Pey Casado v. Chile (ICSID Case No. ARB/98/2) resigned.
● Two of the three arbitrators in the annulment proceedings in the cases of MTD v. Chile and CMS v. Argentina were the same which made the outcome of e.g. the later-in-time decision on stay of enforcement.
● The arbitrators in the Malaysian Historical Salvors v. Malaysia (ICSID Case No. ARB/05/10) annulment proceedings were all past and present Judges from the International Court of Justice.
● The arbitrators in the cases of Pioneer v. Argentina (ICSID Case No. ARB/03/12) and Pan American v. Argentina (ICSID Case No. ARB/03/13), and Alcoa Minerals v. Jamaica (ICSID Case No. ARB/74/2), Kaiser Bauxite Company v. Jamaica (ICSID Case No. ARB/74/3) and Reynolds v. Jamaica(ICSID Case No. ARB/74/4), respectively, were all the same.
Which law firms have served the most times in ICSID cases?
(in alphabetical order)
Arnold & Porter LLP
Freshfields Bruckhaus Deringer LLP
King & Spalding LLP
Latham & Watkins LLP
Shearman & Sterling LLP
Sidley Austin LLP
White & Case LLP
Which prominent scholars have served as party-representatives or counsels in ICSID cases?
Judge Stephen M. Schwebel
Prof. Dr. James R. Crawford
Prof. Christopher Greenwood
Prof. Alain Pellet
Prof. Philippe Sands, QC
Prof. Antonio Crivellaro
In which fields of economic activity most of the cases find their origin?
Hydrocarbon concessions, petroleum and oil exploration and production, gas supply and distribution 71
Electric power generation, distribution and sale 39
Mining concessions and mineral exploration 31
Construction contracts, including real estate, dams, etc. 21
Highway construction contracts 14
Telecommunications 13
Water services 12
Which is the first ICSID award?
The Award rendered on August 29, 1977 in the case of Adriano Gardella S.p.A. v. Côte d’Ivoire (ICSID Case No. ARB/74/1).
What is the highest award amount so far?
The highest award amount of US$ 1,769,625,000 was awarded in the case of Occidental v. Ecuador (ICSID Case No. ARB/06/11) Award of October 5, 2012.
What is the lowest award amount so far?
It seems that the lowest award amount of US$ 460,000 (as principal) was awarded in Asian Agricultural Products Ltd. v. Sri Lanka (ICSID Case No. ARB/87/3) Award of June 27, 1990.
How much does an ICSID case cost in terms of legal costs?
The information below was intended to bring light to the question how much does an ICSID case cost in terms of legal representation. The information provided must be retained with caution since legal costs depend, among others, on the duration and the complexity of the case. Moreover, many awards are not publicly available and most Tribunals order that each party bears its own costs of legal representation without mentioning the sums.
Here are some examples of the practice of ICSID Tribunals:
● In CDC v. Seychelles (ICSID Case No. ARB/02/14) Award of December 17, 2003, Seychelles were ordered to pay the Claimant the sum of £ 100,000 representing legal fees.
● In Pantechniki v. Albania (ICSID Case No. ARB/07/21) Award of July 30, 2009, the cost claims of the parties were among the lowest – EUR 154,523 and EUR 269,657, respectively.
● In Telenor Mobile v. Hungary (ICSID Case No. ARB/04/15) Award of September 13, 2006, the Counsel for Hungary demanded the reimbursement of US$ 1,249,340.29.
● In Siag v. Egypt (ICSID Case No.ARB/05/15) Award of June 1, 2009, Egypt was ordered to pay the the sum of USD 6,000,000 in legal costs.
● In Spyridon Roussalis v. Romania (ICSID Case No. ARB/06/1) Award of December 7, 2011, the Claimant had to pay 60% of the Respondent’s legal fees in the amount of EUR 6,053,443.78.
● The Tribunal in Cementownia Nowa Huta S.A. v. Turkey (ICSID Case No. ARB(AF)/06/2) Award of September 17, 2009 found that:
“the Respondent’s legal fees and expenses are not unreasonable having regard to the course of these proceedings and that, therefore, the Claimant is to bear such costs in the amount of USD 4,904,822.06.” (para. 178)
● In Kardassopoulos & Fuchs v. Georgia (ICSID Case Nos. ARB/05/18 and ARB/07/15) Award of March 3, 2010, the Respondent was liable to pay the Claimants their costs for the proceedings in the total amount of US$ 7,942,297.
● In ADC v. Hungary (ICSID Case No. ARB/03/16) Award of October 2, 2006, the Claimant demanded US$ 7,623,693 in respect of the Claimants’ costs and expenses. The Tribunal found
“no reason to depart from the starting point that the successful party should receive reimbursement from the unsuccessful party.” (para. 533)
See also Abaclat et al. v. Argentina (ICSID Case No. ARB/07/5) at para. 682.
● The Tribunal in Gemplus & Talsud v. United Mexican States (ICSID Cases Nos. ARB (AF)/04/3 & ARB (AF)/04/4)) Award of June 16, 2010 recognized that:
“It is well-known that legal costs incurred by respondent-state parties are usually much lower than costs incurred by claimant-private parties, partly because a claimant bears a greater burden in presenting and proving its case, partly because a state’s billing practices with its legal representatives are different and partly, as here, where there is more than one claimant bringing claims under more than one treaty.” (para. 17-25)
Which is the most invoked BIT?
From the information available it may be concluded that this is the Argentina – U.S. Bilateral Investment Treaty which was relied upon,inter alia, in the following cases:
CMS v. Argentina (ICSID Case No. ARB/01/8)
Azurix Corp. v. Argentina (ICSID Case No. ARB/01/12)
Continental Casualty Company v. Argentina (ICSID Case No. ARB/03/9)
Pan American Energy LLC and BP Argentina Exploration Company v. Argentina (ICSID Case No. ARB/03/13)
Enron v. Argentina (ICSID Case No. ARB/01/3)
LG&E v. Argentina (ICSID Case No. ARB/02/1)
Sempra v. Argentina (ICSID Case No. ARB/02/16)
AES Corporation v. Argentina (ICSID Case No. ARB/02/17)
El Paso Energy v. Argentina (ICSID Case No. ARB/03/15)
How long does an ICSID case take?
Approximately 3.6 years. See Sinclair, A., ICSID Arbitration: how long does it take?, 4:5 GAR J. (2009), available here .
Which is the shortest merits award (in terms of length)?
CDC v. Seychelles (ICSID Case No. ARB/02/14) Award of December 17, 2003 – 23 pages.
Which is the longest merits award (in terms of length)?
Gemplus & Talsud v. United Mexican States (ICSID Cases Nos. ARB (AF)/04/3 & ARB (AF)/04/4)) Award of June 16, 2010 – 382 pages
Are there claims filed by a State against an investor?
Gabon v. Société Serete S.A. (ICSID Case No. ARB/76/1)
The basis of jurisdiction was a contract. The case was eventually settled.
Romania’s counterclaim in Spyridon Roussalis v. Romania (ICSID Case No. ARB/06/1) was admitted on the basis of the umbrella clause found in Article Article 2(6) of the Romania-Greece BIT. (Award of December 7, 2011, para. 781)
Which cases may be called landmark cases?
While it may be said that every decision and award rendered by an ICSID Tribunal (or committee) contains interesting findings of law, among them the following may be mentioned as particularly interesting:
● Santa Elena v. Costa Rica (ICSID Case No. ARB/96/1) Final award of February 17, 2000, on the compound interest. Up until this point, most of the ICSID Tribunals denied awarding compound interest relying on a citation from Marjorie Whiteman in her book Damages in International Law vol. III (1943) at p. 1997:
“[t]here are few rules within the scope of the subject of damages in international law that are better settled than the one that compound interest is not allowable.”
This is, among other things, evidence of the influence a scholar can have on international law.
● Maffezini v. Spain (ICSID Case No. ARB/97/7) Award of November 9, 2000, as to attribution of State responsibility.
● Salini v. Morocco (ICSID Case No. ARB/00/4) Decision on Jurisdiction of July 23, 2001, regarding the so-called Salini test for the notion of investment.
● Vivendi v. Argentina (ICSID Case No. ARB/97/3) First Annulment, Decision on Annulment dated July 3, 2002, as to the relation between treaty and contract.
● SGS v. Pakistan (ICSID Case No. ARB/01/13) Decision of the Tribunal on objections to jurisdiction of August 6, 2003 and SGS v. Philippines(ICSID Case No. ARB/02/6) Decision of the Tribunal on objections to jurisdiction of January 29, 2004, with regard to the so-called umbrella clause.
● ADC v. Hungary (ICSID Case No. ARB/03/16) Award of October 2, 2006, in relation to valuation in cases of unlawful expropriation.
● Phoenix Action v. the Czech Republic (ICSID Case No. ARB/06/5) Award of April 15, 2009, as to bona fide investments.
● Abaclat et al. v. Argentina (ICSID Case No. ARB/07/5) Decision on jurisdiction and admissibility August 4, 2011, regarding admissibility of mass claims of 60,000 Claimants (the total number of whom at the time of initiation of the arbitration exceeded 180,000) mostly natural persons of Italian nationality relating to bonds issued by Argentina.
Which States have refused to comply with ICSID awards or have considerably obstructed compliance?
Argentina is well known for its interpretation of Articles 53 and 54, i.e. that the successful Claimant’s recourse to enforcement in its national courts is a pre-condition for payment of the award (See for e.g. Enron v. Argentina (ICSID Case No. ARB/01/3) Decision on the Argentine Republic’s Request for a Continued Stay of Enforcement of the Award, 7 October 2008, available here).
Which States have withdrawn from the ICSID Convention?
Bolivia, Ecuador and Venezuela.
Which States are not parties to the ICSID Convention?
Brazil and India are not among the 158 Members to the ICSID Convention.
Other curious facts
● After the award in the RSM v. Grenada (ICSID Case No. ARB/05/14) was rendered, RSM tried to sue Freshfields Bruckhaus Deringer LLP counsel for Grenada alleging that Freshfields conspired to violate the Racketeer Influenced and Corrupt Organizations Act by, for e.g., Jan Paulsson and Brian King being part of the conspiracy to bribe Grenada officials and deny RSM its licensing rights. RSM claimed the excess of US$500 million in damages. The claim was dismissed. See US District Court for the District of Columbia, Civil Action No. 10-00457 availablehere.
● Both the Claimant and the Respondent in the Europe Cement Investment v. Turkey (ICSID Case No. ARB(AF)/07/2) Award of August 13, 2009, ended up claiming that the Tribunal lacked jurisdiction. This is one of the Uzan family-related cases against Turkey. The Claimant wanted to discontinue the proceedings but the Respondent State disagreed. (See para. 139 of the Award)
Funniest quote from an ICSID award
“[H]appiness is multiple pipelines”
Mentioned in the case of Kardassopoulos & Fuchs v. Georgia (ICSID Case Nos. ARB/05/18 and ARB/07/15) Award of March 3, 2010, para. 5, in relation to the Western Route which was of
“significant national and strategic importance for Georgia as a means of securing its sovereignty following the break up of the Soviet Union and deepening its ties to the West.” (para. 3)
The site of ICSID is informative and accessible. Still it may be improved by, for e.g., adding information as to the basis of the jurisdiction in the particular case, nationality of the Claimant, amount claimed, amount awarded, who represented the parties, which was the successful party, costs of the proceedings, etc.
Largest Award Ever in Bilateral Investment Treaty Case at ICSID
07 November 2012
In the largest arbitral award ever to be rendered by a tribunal at the International Centre for Settlement of Investment Disputes (ICSID), the Republic of Ecuador has been ordered to pay $1,769,625,000 (US) for terminating an oil production investment held by the U.S. company, Occidental Petroleum. Arbitrators in the case were Canadian lawyer, L. Yves Fortier QC, retired New Zealand judge David AR Williams, and retired French law professor Brigitte Stern.
Occidental filed for arbitration under the U.S.-Ecuador bilateral investment treaty (BIT) following Ecuador’s May 2006 decision to terminate a participation contract for Block 15 located in the Ecuadorian Amazon. Authorities blamed the move on Oxy’s having improperly transferred a share of its Ecuadorian production activity to a Canadian energy firm.
In a 336 page award an ICSID arbitral tribunal conceded that Occidental had breached the terms of the participation contract by failing to obtain government authorization for the transfer of rights. However, arbitrators held that Ecuador’s decision to strip Occidental of its investment and its failure to pay compensation were disproportionate, and in breach of Ecuador’s treaty obligations to provide for “fair and equitable treatment” and to refrain from expropriating assets without compensation. Arbitrators also found that Ecuador’s actions breached its own laws.
The damages awarded by arbitrators reflect the value of Occidental’s investment as of May 2006 when its contact was terminated, minus a 25% deduction due to Occidental’s own breach of the participation contract. Ecuador must also pay interest of 4.18% on the awarded sum, compounded annually, to reflect the increase in value of the damages from May 2006 until the time of the arbitral award.
In a dissenting opinion Ecuador’s nominee to the three member arbitral tribunal, expressed her agreement with the majority’s analysis of the facts and the law, including its finding that Ecuador acted disproportionately in response to what she termed Occidental’s “serious violation” of Ecuadorian law.
However, Prof. Stern expressed “complete disagreement with the way damages have been calculated”, and would have favoured a 50/50 approach to damages similar to that in an earlier ICSID arbitration (MTD v Chile), so that Oxy’s damages would be halved as a result of its having “acted both very imprudently and illegally.”
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Anyone wanting to know much more detail of exactly how the British colonial heritage old boys private central banking network has put New Zealand under the control of their receivership branch the - International Monetary Fund (IMF) - alongside their legal branch the - International Committee for Settlement of Investment Disputes (ICSID) - please read this document;
and many more informative global money system structure articles here;

1 comment:

  1. Just goes to show how sneakily layered the ops of the wealthy can nastily get. And when they find that enough isn't enough anymore, they make up new rules to lay claim to increasing their wealth beyond means. Oh well, let them play their silly games, eventually they're gonna run out of financial resource victims, and end up fighting amongst themselves until only one is left standing. Save us the effort of the fight, we'll just wait our turn to take back from them what they took from us in the first place.