SECURITY of PETROLEUM INVESTMENTS: the ROLE of DISPUTE RESOLUTION a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb International Arbitrator & Mediator President CIArb to the Cámara Industriales de Comercio Ecuatoriana-Británica 9 th July 2007
OVERVIEW of PRESENTATION Introduction Oil Industry Agreements Dispute Resolution Clauses & Options Domestic/International Disputes Oil & Gas Industry – a Special Case ? Conclusions
OIL INDUSTRY AGREEMENTS State/State Joint Development Zones State/OilCo e.g. PPL/PSC/PSA OilCo/OilCo e.g. JOA/SPA/FIA etc OilCo/Contractor e.g. drilling/construction contracts Contractor/Subcontractor
DISPUTE RESOLUTION OPTIONS Litigation Arbitration Domestic/International Mediation/Conciliation/Other ADR Application in Oil & Gas Industry Advantages and Disadvantages
LITIGATION Difficulties of Litigating Local Laws – are they adequate ? Courts – Good, Bad and Ugly Litigation against States Timescales - long and VERY long Finality Enforceability Costs
INTERNATIONAL COMMERCIAL ARBITRATION (1) - OVERVIEW What Is It ? Profusion of Relevant/Applicable Laws Institutions and Tribunals Finality Enforceability Security for Both Parties
INTL. COMM. ARBITRATION (2) PROFUSION of LAWS Law of the Contract Law of the Arbitration Agreement Law of the Arbitration (Lex Arbitri) Law governing Capacity of Parties Law of Seat (Lex Curiae) Law of Place of Enforcement Other Potentially Applicable Laws
INTL. COMM. ARBITRATION (3) SOME KEY LEGAL ISSUES Arbitrability Capacity Substantive vs Procedural Laws Arbitrations against States/State Immunity Enforceability Public Policy Exception (NYC V(2)(b)) Protectionism
INTL. COMM. ARBITRATION (4) INSTITUTIONS UNCITRAL ICSID/NAFTA/ECT ICC/LCIA CIAM Other Regional Institutions eg CIETAC/AAA Chartered Institute of Arbitrators Other
INTL. COMM. ARBITRATION (5) PROCEEDINGS (1) Party Autonomy Ad Hoc vs Institutional Arbitration Choice of Lex Arbitri Choice of Rules/Institution Choice of Tribunal Choice of Seat Relevance to Security
INTL. COMM. ARBITRATION (6) PROCEEDINGS (2) Choice of Language + Procedure Common vs Civil Law Cultures Communications Disclosure Ethics Tribunal Issues Relevance to Security
INTL. COMM. ARBITRATION (7) AWARD & ENFORCEMENT Appeals Jurisdiction Procedural Failures Issues of Law Exequatur Enforcement New York Convention 1958
INTL. COMM. ARBITRATION (8) NEW YORK CONVENTION Recognition of Arbitration Agreements Enforcement via NYC58; Court may refuse Art. V(1) Capacity/Invalidity Failure of Due Process/other Procedural Failure Outwith Jurisdiction Award Not Binding/Set Aside at seat Art. V(2) Dispute not Arbitrable Award Contrary to Public Policy Court MAY, not “shall”, refuse enforcement Enforcement other than via NYC58
INVESTMENT ARBITRATION Private Investor vs State/State Entity Nature of Arbitration Agreement BITs/MITs Washington Convention/ICSID NAFTA Energy Charter Treaty State Immunity
ALTERNATIVE DISPUTE RESOLUTION (1) - OVERVIEW What is ADR ? Why ADR ? Relationship with Courts Compulsory or Voluntary ? Court Support of: The Process The Outcome Qualifications and Training
ADR (2) – FORMS of ADR Executive Negotiation Early Neutral Evaluation (ENE) Private Mini-Trials Adjudication, DABs DRBs Mediation/Conciliation Med-Arb, Arb-Med, MedExDet Arbitrediation Other/None of the Above
DISPUTE PREVENTION & DISPUTE MANAGEMENT Prevention Corporate Culture Co-Operation – what do YOU Want Conciliatory Approach Local Customs/Culture/Mores Management Dedicated Task Force Expertise – technical/litigator Decision-making
CONCLUSIONS (1) Prevalence of/Preference for Litigation Wide Range of Dispute Resolution Tools Arbitration Best Overall Package for Both Oilmen’s Decisions Best for Oily Disputes Difficulties with Judge or QC Arbitrators
CONCLUSIONS (2) Muchas Gracias for your ATTENTION this morning