claims in cases where there have
been gross violations of local law.” Lamm persuaded a treaty
tribunal that Fraport violated the Philippine law limiting management control by foreign investors—only to have the result
rolled back on an evidentiary issue. Fraport has refiled its treaty claim. The recriminations over local law rage on.
A handful of colorful cases allege abuse of local courts by
private parties. In OAO Tatneft v. Ukraine, a Russian corporation claims that Ukraine allowed an oligarch group to steal its
shareholding in an oil refinery
through the Ukrainian courts.
(Ukraine disputes the claim.)
In Danone Asia Pte. Ltd. v.
Wahaha Ltd., the French dairy
group argued that its Chinese
partner was wrongly allowed by Chinese courts to set up competing ventures. Danone reportedly agreed in 2009 to settle
its claim and sell its stake for $450 million. Lawyers for both
sides declined to comment on the cases.
Most spectacular is the case of Chevron Corporation in Ecuador. Chevron famously alleges that U.S. trial lawyers helped
Amazon tribespeople to win a fraudulent $18 billion verdict
in Ecuadorian court, while procuring a fraudulent criminal
prosecution of two of the corporation’s lawyers. (The plaintiffs
strongly deny Chevron’s allegations.)
Without commenting on any particular case, it is fair to say
continued from page 130—
that local justice is sometimes imperfect. What is an adventur-
ous investor to do? Robert Sills of Orrick, Herrington & Sut-
cliffe used a federal district court in Manhattan to neutralize
what he saw as an effort by affiliates of Russia’s Alfa Group to
derail his client’s arbitration in Ukrainian and Russian courts
[“Court of Last Resort,” Winter 2011]. He offers two pieces of
advice. One, make sure that your arbitration agreement is gov-
erned by the law of New York, or another Western jurisdiction
with robust courts willing to rein in shenanigans overseas. Two,
But Jan Paulsson, a principal
consultant at Freshfields Bruck-
haus Deringer and a professor
at University of Miami School of Law, cautions that an “escape
to arbitration” is not the answer. “It’s inconceivable to sustain a
system where arbitration is good, and courts are bad,” he says.
First, “creating an exclusive justice system is not a noble goal.”
Second, it is not workable in the long run, because arbitration
is dependent on decent courts for enforcement. “As courts be-
come worse,” Paulsson argues, “they will reach back into the
arbitration universe and undo it.”
Both philosophically and practically, the best response to
local shenanigans is not to withdraw into enclaves of privileged
justice, but to bolster the rule of law everywhere. ■
“It’s inconceivable to sustain a
system where arbitration is good
and courts are bad,” says Paulsson.
www.almreprints.com
Turn your good press into great marketing!
Order your reprints as published in Focus Europe today. Contact 202-828-031 or msolomon@alm.com.
IN PRINT
DIGITAL
The Power Profile
Introducing
Martindale-Hubbell®+
INTEGRATED MEDIA
The Power Profile
Introducing
Martindale-Hubbell +
The Power Profile
Introducing
Martindale-Hubbell +
Make your firm’s profile come to life. Make it a Power Profile.
Volume reprints 100 or more
A Plaque
E-Print, PDF w/
distribution license Call877-257-3382oremail: reprints@ALM.com
Add toyourMartindale-Hubbellprofileonmartindale.com.
Highlight your strengths and capabilities. Bring a powerful new perspective
to the way existing clients and prospective clients see your firm.
Make your firm’s profile come to life. Make it a Power Profile.
Include hyperlinks •
Embed footage in your E-Print and/or URL on your •
printed collatoral
Repurpose as an advertorial •
Call 877-257-3382 or email: reprints@ALM.com
Add toyourMartindale-Hubbellprofileonmartindale.com.
Highlight your strengths and capabilities. Bring a powerful new perspective
to the way existing clients and prospective clients see your firm.
Make your firm’s profile come to life. Make it a Power Profile.
