The American Lawyer - Focus Europe, Summer 2011

ARBITRAL INSTITUTION AND SITE: ICSID/London NOTES: One of several claims challenging Ecuador’s 2006 imposition of a windfall tax on energy producers. Perenco, a subsidiary of France’s Perenco S.A., complains that the levy breaches the France–Ecuador BIT, as well as stabilization commitments made in production sharing agreements. Ecuador disputes the claim. The case has been slowed by the resignation of one arbitrator due to ill health, and another after a disqualification challenge. Jurisdictional hearings were held in November of 2010 in The Hague.

utility. However, in December 2010 ICSID annulled the arbitral award, because the original tribunal had denied the parties opportunity to comment fully on the significance of a new authority that the respondent had submitted late in the arbitration—namely, a Philippine special prosecutor’s determination that there had been no violation of Philippine law, and part of the record on which it was based. Fraport submitted a new request to ICSID in March 2011.

AMOUNT IN CONTROVERSY: $1 billion

DISPUTE: Fraport AG (Germany) and Frankfurt Airport Services Worldwide (Germany) v. Republic of the Philippines CLAIMANT’S COUNSEL: Milbank, Tweed, Hadley & McCloy; K&L Gates RESPONDENT’S COUNSEL: White & Case; Sycip Salazar Hernandez & Gatmaitan; Justice Florentino Feliciano (ret.); Agnes Devanadera; Office of the Solicitor General ARBITRAL INSTITUTION: ICSID NOTES: Frankfurt airport’s Fraport invested more than $425 million in the construction of a new terminal at Manila’s Ninoy Aquino International Airport. Following construction of the terminal, Fraport alleges that the Philippines nullified the contracts and seized the terminal in violation of its investment treaty. In August 2007 a divided panel declined jurisdiction over the case on the grounds that Fraport had violated Philippine “antidummy” law, which prohibits Filipinos from letting foreigners manage a public

AMOUNT IN CONTROVERSY: Approximately $1 billion DISPUTE: E. T.I. Euro Telecom International N.V. (The Netherlands) v. The Plurinational State of Bolivia CLAIMANT’S COUNSEL: Cleary Gottlieb Steen & Hamilton RESPONDENT’S COUNSEL: Dechert ARBITRAL INSTITUTION AND SITE: Ad hoc (UNCITRAL)/ Washington, D.C. NOTES: Telecom Italia’s Dutch subsidiary E. T.I. claimed that Bolivia violated the Netherlands–Bolivia BIT when it seized E. T.I.’s 50 percent stake in the local telecom operator Entel Bolivia in 2008. In a November 2010 settlement, Bolivia agreed to pay $100 million in compensation.