PCA Case No. 2016-39
IN THE MATTER OF AN ARBITRATION UNDER AGREEMENT BETWEEN THE
GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
IRELAND AND THE GOVERNMENT OF THE REPUBLIC OF BOLIVIA FOR THE
PROMOTION AND PROTECTION OF INVESTMENTS, SIGNED ON 24 MAY 1988
- and -
THE UNCITRAL ARBITRATION RULES
-between-
GLENCORE FINANCE (BERMUDA) LTD
(the “Claimant”)
-and-
THE PLURINATIONAL STATE OF BOLIVIA
(the “Respondent”, and together with the Claimant, the “Parties”)
Tribunal
Prof. Ricardo Ramírez Hernández (Presiding Arbitrator)
Prof. John Y. Gotanda
Prof. Philippe Sands
29 March 2017
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1. Parties to the ArbitrationThe Claimant Glencore Finance (Bermuda) Ltd |
Counsel for the Claimant Nigel Blackaby |
|
The Respondent The Plurinational State of Bolivia |
Counsel for the Respondent Pablo Menacho Diederich Eduardo Silva Romero Álvaro Galindo |
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Maria Claudia Procopiak
Dechert LLP
160 Queen Victoria Street
EC4V 4QQ
London
United Kingdom
E-mail: [email protected]
2.1 According to the Claimant, a dispute has arisen between the Parties under the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Bolivia for the Promotion and Protection of Investments, signed on 24 May 1988 and entered into force on 16 February 1990 (the “Treaty”).
2.2 By Notice of Arbitration dated 19 July 2016, the Claimant commenced arbitration proceedings against the Respondent pursuant to Article 8 of the Treaty and the Arbitration Rules of the United Nations Commission on International Trade Law, as adopted in 2010 (the “UNCITRAL Rules”).
2.3 In accordance with the UNCITRAL Rules, these arbitration proceedings are deemed to have commenced on 19 July 2016, the date on which the Respondent received the Notice of Arbitration.
3.1 Pursuant to Article 8 of the Treaty, this arbitration shall be conducted in accordance with the UNCITRAL Rules.
3.2 By agreement of the Parties, the Secretary-General of the Permanent Court of Arbitration (the “PCA”) acts as the appointing authority in this arbitration for all purposes under the UNCITRAL Rules.
3.3 Procedural orders shall be signed and issued by the presiding arbitrator alone after consultation with his co-arbitrators. In cases of urgency or if a co-arbitrator cannot be reached in a timely manner, the presiding arbitrator may take procedural decisions on his own, subject to revision, if any, by the full Tribunal.
4.1 The Parties have designated their respective representatives listed above as being authorized to act on their behalf in these arbitration proceedings.
4.2 To the extent they have not already done so, the Parties shall confirm these designations by each Party providing to the other copies of the powers of attorney or letter of representation granted to its representative(s).
4.3 In the event of any change by a Party of its representatives or of the contact details of any of its representatives, that change shall be notified promptly in writing to opposing counsel, to each member of the Tribunal, and to the PCA. The Tribunal reserves the right to exclude the participation of any representatives from any hearing or other meeting where their participation has not been duly notified sufficiently in advance of that hearing or meeting.
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5.1 By letter dated 15 September 2016, the Claimant appointed Professor John Y. Gotanda as the first arbitrator. His contact details are as follows:
Prof. John Y. Gotanda
President
Hawai‘i Pacific University
Office of the President, Suite 3100
1 Aloha Tower Drive
Honolulu, Hawai‘i 96813-2823
United States of America
Email: [email protected]
5.2 By letter dated 24 October 2016, the Respondent appointed Professor Philippe Sands as the second arbitrator. His contact details are as follows:
Prof. Philippe Sands
Matrix Chambers
Griffin Building
Gray’s Inn
London WC1R 5LN
DX400 Chancery Lane, London
United Kingdom
E-mail: [email protected]
5.3 Pursuant to the Appointment of Presiding Arbitrator dated 28 February 2017, the Secretary-General of the PCA appointed Professor Ricardo Ramírez Hernández as presiding arbitrator. His contact details are as follows:
Prof. Ricardo Ramírez Hernández
Islote 71
Colonia Las Aguilas, C.P. 03100
Mexico, D.F.
Mexico
E-mail: [email protected]
[email protected]
5.4 The Parties confirm that the members of the Tribunal have been validly appointed in accordance with the Treaty and the UNCITRAL Rules.
5.5 The members of the Tribunal confirm that they are and shall remain impartial and independent of the Parties. Each of the members of the Tribunal confirms that he has disclosed, to the best of his knowledge, all circumstances likely to give rise to justifiable doubts as to his impartiality or independence and that he will without delay disclose any such circumstances that may arise in the future.
5.6 The Parties confirm that they have no objection to the appointment of any member of the Tribunal on the grounds of conflict of interest or lack of independence or impartiality in respect of matters known to them as at the date of these Terms of Appointment.
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6.1 Pursuant to the UNCITRAL Rules, the Tribunal will determine the legal place (or “seat”) of the arbitration having regard to the circumstances of the case, after consultation with the Parties.
6.2 The Tribunal may hold meetings and hearings with the Parties at any location it considers appropriate, as decided by the Tribunal after consultation with the Parties. The Tribunal may meet at any location it considers appropriate for deliberations.
6.3 Irrespective of the place where an award is signed, it will be deemed to have been made at the place of arbitration.
7.1 By agreement of the Parties, English and Spanish shall be the languages of the arbitration.
8.1 The PCA shall act as registry and shall administer the arbitral proceedings on the terms set forth in this section.
8.2 In consultation with the Tribunal, the Secretary-General of the PCA shall designate a legal officer of the International Bureau to act as Registrar and Secretary to the Tribunal.
8.3 The PCA shall maintain an archive of filings of correspondence and submissions.
8.4 The PCA shall manage Party deposits to cover the costs of the arbitration, subject to the Tribunal’s supervision.
8.5 If needed, the PCA shall make its hearing and meeting rooms at the Peace Palace in The Hague or elsewhere available to the Parties and the Tribunal at no charge. Costs of catering, court reporting, or other technical support associated with hearings or meetings at the Peace Palace or elsewhere shall be borne by the Parties.
8.6 Upon request, the PCA shall carry out administrative tasks on behalf of the Tribunal, the primary purpose of which would be to reduce the costs that would otherwise be incurred by the Tribunal carrying out purely administrative tasks. Work carried out by the PCA shall be billed in accordance with the PCA’s schedule of fees.
8.7 The PCA’s fees and expenses shall be paid in the same manner as the Tribunal’s fees and expenses.
8.8 The contact details of the PCA are as follows:
Permanent Court of Arbitration
Attn: Mr. Martin Doe Rodríguez, Senior Legal Counsel
Peace Palace
Carnegieplein 2
2517 KJ The Hague
The Netherlands
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Tel: +31 70 302 4140
Fax: +31 70 302 4167
E-mail: [email protected]
[email protected]
8.9 The appointment of the PCA as registry shall not affect the legal place of arbitration, the geographical location of meetings and hearings, the applicable procedural rules, or other aspects of the arbitral proceedings, which shall remain subject to these Terms of Appointment, any agreement between the Parties, and any decisions by the Tribunal.
9.1 Further procedural details, and in particular a procedural calendar and the determination of the place and language of arbitration, shall be discussed and, as far as possible, agreed at a procedural meeting to be held with the Parties in person or by telephone conference call.
9.2 The results of the procedural meeting shall be included in a further procedural order.
10.1 Subject to any modification arising from the procedural meeting, the following provisions shall apply to communications.
10.2 The Parties and their representatives shall not engage in any oral or written communications with any member of the Tribunal ex parte in connection with the subject-matter of the arbitration.
10.3 The Parties shall send all communications for the attention of the Tribunal by e-mail simultaneously to opposing counsel, to each member of the Tribunal, and to the PCA.
10.4 The Parties shall send copies of correspondence between them to the Tribunal and to the PCA only if such correspondence relates to a matter where the Tribunal is required to take action or to abstain from acting or if it gives notice of a relevant event that the Tribunal and the PCA should be apprised of.
11.1 The parties shall cover the direct costs of the proceedings in equal parts, without prejudice to the final decision of the Tribunal as to the allocation of costs.
11.2 In accordance with the UNCITRAL Rules, each Party shall make an initial deposit of US$ 200,000 within 30 days of the date of these Terms of Appointment, to be deposited with the PCA by wire transfer to the following PCA account:
Bank: ABN Amro Bank N.V.
Kneuterdijk 8
2514 EN
Den Haag
The Netherlands
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Account number: 0533 5127 51
IBAN: NL61 ABNA 0533 5127 51
BIC: ABNANL2A
Beneficiary: Permanent Court of Arbitration
Reference: PCA Case No 2016-39
11.3 The PCA will review the adequacy of the deposit from time to time and, at the request of the Tribunal, may invite the Parties to make supplementary deposits.
11.4 Any transfer fees or other bank charges will be charged by the PCA to the deposit. No interest will be paid on the deposit.
11.5 The unused balance held on deposit at the end of the arbitration shall be returned to the Parties as directed by the Tribunal.
12.1 Each member of the Tribunal shall be remunerated at the rate of US$ 400 per hour plus Value Added Tax (VAT) or General Excise Tax (GET), if applicable, for all time spent in connection with the arbitration.
12.2 The members of the Tribunal shall be remunerated in the amount of 50% of their fees for each day reserved for a hearing or meeting, based on an eight hour day, in respect of any hearing or other meeting for which they are asked to reserve more than one day and that is cancelled, or postponed by more than one week, at the request of one or both of the Parties within two weeks from the first day of such hearing or meeting.
12.3 Members of the Tribunal shall be reimbursed for all disbursements and charges reasonably incurred in connection with the arbitration, including but not limited to travel expenses, telephone, fax, delivery, printing, and other expenses.
12.4 Members of the Tribunal may bill for reimbursement of disbursements and charges as and when they are incurred, and may submit to the PCA periodic bills in respect of fees.
12.5 All payments to the Tribunal shall be made from the deposit administered by the PCA.
13.1 The Parties shall not seek to make the Tribunal or any of its members liable in respect of any act or omission in connection with any matter related to this arbitration.
13.2 The Parties shall not require any member of the Tribunal to be a party or witness in any judicial, administrative, or other proceedings arising out of or in connection with the arbitration.
14.1 These Terms of Appointment may be signed in counterparts, collectively forming one composite signed document.
[signature page follows]
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THE CLAIMANT: |
THE RESPONDENT: |
|
Signature Glencore Finance (Bermuda) Ltd Date: April 4, 2017 |
The Plurinational State of Bolivia Date: |
THE TRIBUNAL:
|
John Y. Gotanda Date: |
Philippe Sands Date: |
Ricardo Ramírez Hernández
(Presiding Arbitrator)
Date:
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THE CLAIMANT: |
THE RESPONDENT: |
|
Glencore Finance (Bermuda) Ltd Date: |
Signature The Plurinational State of Bolivia Date: April 6, 2017 |
THE TRIBUNAL:
|
John Y. Gotanda Date: |
Philippe Sands Date: |
Ricardo Ramírez Hernández
(Presiding Arbitrator)
Date:
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THE CLAIMANT: |
THE RESPONDENT: |
|
Glencore Finance (Bermuda) Ltd Date: |
The Plurinational State of Bolivia Date: |
THE TRIBUNAL:
|
Signature John Y. Gotanda Date: 4/25/17 |
Philippe Sands Date: |
Ricardo Ramírez Hernández
(Presiding Arbitrator)
Date:
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THE CLAIMANT: |
THE RESPONDENT: |
|
Glencore Finance (Bermuda) Ltd Date: |
The Plurinational State of Bolivia Date: |
THE TRIBUNAL:
|
John Y. Gotanda Date: |
Signature Philippe Sands Date: 26.4.2017 |
Ricardo Ramírez Hernández
(Presiding Arbitrator)
Date:
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THE CLAIMANT: |
THE RESPONDENT: |
|
Glencore Finance (Bermuda) Ltd Date: |
The Plurinational State of Bolivia Date: |
THE TRIBUNAL:
|
John Y. Gotanda Date: |
Philippe Sands Date: |
Signature
Ricardo Ramírez Hernández
(Presiding Arbitrator)
Date: