The case of the day is Micula v. Government of Romania (D.D.C. 2015). Viorel Micula alleged that he had made investments in Romania in reliance on certain incentives offered by the Romanian government. He claimed that Romania later revoked the incentives, causing him to suffer a loss, and that Romania had acted in violation of its bilateral investment treaty with Sweden. Micula demanded an ICSID arbitration, which resulted in an award in his favor (and in favor of several other investors) of more than $116 million.
Romania asked ICSID to annul the award, and at Romania’s request, ICSID’s secretary-general granted an initial stay of enforcement of the award. Shortly thereafter, Micula brought a petition in Washington under 22 U.S.C. § 1605a seeking ex parte confirmation of the award. (Ex parte confirmation is a well-established procedure in the SDNY; I discussed the issue in a post on Mobil Cerro Negro v. Venezuela). ICSID later constituted an ad hoc committee to consider whether the award should be stayed pending a decision on annulment. The committee agreed to a further stay, but only if Romania gave a written assurance that it would pay the award in full if annulment were denied. Romania failed to give the written assurance, and the committee revoked the initial stay.
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The case of the day is In re Application of Grupo Unidos Por El Canal, S.A. (D. Colo. 2015). The Autoridad del Canal de Panama, the agency in charge of the Panama Canal, is in the course of an expansion of the canal to include a third set of locks. Grupo Unidos Por El Canal, one of the contractors engaged on the project, claims that ACP breached its contract with GUPC “by concealing and withholding critical information regarding the true nature of the existing conditions at the Project and the status of other aspects of the Panama Canal expansion.” GUPC demanded arbitration. As provided in the parties’ contract, the arbitration was held in Miami under the ICC Rules. The parties agreed that the arbitration was governed by the FAA, and they agreed that discovery in the arbitration was governed by the IBA Rules on the Taking of Evidence in International Commercial Arbitration.
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The case of the day is Lombard-Knight v. Rainstorm Pictures, Inc. (Cal. Ct. App. 2015). Rainstorm was a California movie production company. It entered into two investment agreements with Fortnom & Co. SA, under which Fortnom was required to provide $300 million upon Rainstorm’s delivery to it of performance bonds. It turned out, according to the court, that “Fortnom was never formed and did not exist as a separate legal entity at the time the agreements were executed.” Oops! Both contracts were signed on Fortnom’s behalf by Anthony Lombard-Knight. Both agreements had arbitration clauses, and both contained the following provisions:
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