Corruption, Fraud, Illegality Issues In Investment Arbitration Como Espada Y Escudo
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1 Corruption, Fraud, Illegality Issues In Investment Arbitration Como Espada Y Escudo Dr. Claudia Annacker Yale Law School - Latin American Legal Studies Breakfast Roundtable - International Investment Arbitration In The Latin American Context - April 12, Cleary Gottlieb Steen & Hamilton LLP. All rights reserved. Throughout this presentation, Cleary Gottlieb and the firm refer to Cleary Gottlieb Steen & Hamilton LLP and its affiliated entities in certain jurisdictions, and the term offices includes offices of those affiliated entities.
2 Prevalence Of Illegality Issues In Investment Arbitration Abaclat and others v. Argentina African Holding and SAFRICAS v. Democratic Republic of Congo Alpha Projektholding v. Ukraine Anderson and others v. Costa Rica Ares International and MetalGeo v. Georgia Azinian and others v. Mexico Cementownia v. Turkey (ICSID ARB(AF)/06/2) Chevron and Texaco Petroleum v. Ecuador (UNCITRAL/PCA, UNCITRAL/ad hoc) Consorzio Groupement L.E.S.I. - Dipenta v. Algeria Desert Line Projects v. Yemen EDF (Services) v. Romania Europe Cement v. Turkey F-W Oil Interests v. Trinidad and Tobago Fakes v. Turkey Feldman v. Mexico Fraport v. Philippines Genin and others v. Estonia Gustav Hamester v. Ghana Inceysa Vallisoletana v. El Salvador Inmaris and others v. Ukraine International Thunderbird Gaming v. Mexico 2 Libananco Holdings v. Turkey Malicorp v. Egypt Metalpar y Buen Aire v. Argentina Mytilineos Holdings v. State Union of Serbia & Montenegro and Republic of Serbia Phoenix Action v. Czech Republic Plama Consortium v. Bulgaria Quiborax and others v. Bolivia RSM Production and others v. Grenada (ICSID ARB/10/6) RSM Production v. Grenada (ICSID ARB/05/14) Rumeli and Telsim v. Kazakhstan SGS v. Paraguay Siag and Vecchi v. Egypt Siemens v. Argentina SIREXM v. Burkina Faso Tokios Tokelės v. Ukraine TSA Spectrum v. Argentina Tza Yap Shum v. Peru Vanessa Ventures v. Venezuela Wena Hotels v. Egypt World Duty Free v. Kenya Yukos Universal, Hulley Enterprises, Veteran Petroleum v. Russian Federation
3 Prevalence Of Illegality Issues In Latin American Investment Arbitration Abaclat and others v. Argentina Anderson and others v. Costa Rica Azinian and others v. Mexico Chevron and Texaco Petroleum v. Ecuador (UNCITRAL/PCA, UNCITRAL/ad hoc) F-W Oil Interests v. Trinidad and Tobago Feldman v. Mexico Inceysa Vallisoletana v. El Salvador International Thunderbird Gaming v. Mexico Quiborax and others v. Bolivia RSM Production and others v. Grenada (ICSID ARB/10/6) RSM Production v. Grenada (ICSID ARB/05/14) SGS v. Paraguay Siemens v. Argentina TSA Spectrum v. Argentina Tza Yap Shum v. Peru Vanessa Ventures v. Venezuela Metalpar y Buen Aire v. Argentina 3
4 Illegality, Fraud, Corruption The Sword and The Shield Abaclat and others v. Argentina African Holding and SAFRICAS v. Democratic Republic of Congo Alpha Projektholding v. Ukraine Anderson and others v. Costa Rica Ares International and MetalGeo v. Georgia Azinian and others v. Mexico Cementownia v. Turkey (ICSID ARB(AF)/06/2) Chevron and Texaco Petroleum v. Ecuador (UNCITRAL/PCA, UNCITRAL/ad hoc) Consorzio Groupement L.E.S.I. - Dipenta v. Algeria Desert Line Projects v. Yemen EDF (Services) v. Romania Europe Cement v. Turkey F-W Oil Interests v. Trinidad and Tobago Fakes v. Turkey Feldman v. Mexico Fraport v. Philippines Genin and others v. Estonia Gustav Hamester v. Ghana Inceysa Vallisoletana v. El Salvador Inmaris and others v. Ukraine International Thunderbird Gaming v. Mexico 4 Libananco Holdings v. Turkey Malicorp v. Egypt Metalpar y Buen Aire v. Argentina Mytilineos Holdings v. State Union of Serbia & Montenegro and Republic of Serbia Phoenix Action v. Czech Republic Plama Consortium v. Bulgaria Quiborax and others v. Bolivia RSM Production and others v. Grenada (ICSID ARB/10/6) RSM Production v. Grenada (ICSID ARB/05/14) Rumeli and Telsim v. Kazakhstan SGS v. Paraguay Siag and Vecchi v. Egypt Siemens v. Argentina SIREXM v. Burkina Faso Tokios Tokelės v. Ukraine TSA Spectrum v. Argentina Tza Yap Shum v. Peru Vanessa Ventures v. Venezuela Wena Hotels v. Egypt World Duty Free v. Kenya Yukos Universal, Hulley Enterprises, Veteran Petroleum v. Russian Federation
5 Illegality, Fraud, Corruption Jurisdictional or Admissibility Defense Lack Of Consent To Arbitrate Disputes Concerning Illegal Investments: Explicit "In Accordance With The Law" Clause Implicit "In Accordance With The Law" Clause Principle Of Good Faith "Unclean Hands" Principle International Public Policy Possible Joinder To The Merits 5
6 Illegality, Fraud, Corruption Merits Defense No Protection Of Illegal Investments No Property Rights Under the Host State s Law No Legitimate Expectations Protected Under Investment Treaties No Treaty Violations For State Measures Combating Illegality 6
7 Illegality, Fraud, Corruption Merits Claim State Corruption Of The Executive Branch That Harms The Investment State Corruption Of The Judiciary That Harms The Investment High Burden Of Proof 7
8 Illegality, Fraud, Corruption Damages Defense Discount For: Damages Attributable To Illegal Conduct Value Predicated On Illegal Conduct 8
9 Illegality, Fraud, Corruption Post-award Remedies Revision Proceedings Annulment Proceedings 9
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