Dawn Ying is an associate in the Firm's Dispute Resolution practice.

Her practice focuses on cross-border arbitration and she has been involved in contractual and construction matters. She also has experience in advising on commercial disputes.

Prior to joining White & Case, Dawn was an associate of another US law firm.

The Japan Commercial Arbitration Association's new rules have some novel features. They include an entirely new set of 'Interactive Arbitration Rules', requiring tribunals to give views on the dispute midway through the arbitration.

Introduction

The Japan Commercial Arbitration Association (JCAA) has amended its Commercial Arbitration Rules, and its Administrative Rules for UNCITRAL Arbitration. It has also introduced a new, separate set of rules for 'interactive arbitrations'. The new rules take effect from 1 January 2019.

In this alert, we explore some of the rules' key new features.

Commercial Arbitration Rules

The Commercial Arbitration Rules are the JCAA's main set of rules for commercial arbitrations.

The principal amendments to the Commercial Arbitration Rules relate to:

i. Arbitrator impartiality. Arbitrators must investigate anything that might affect their impartiality and independence. An arbitrator must submit a Declaration of Impartiality and Independence upon appointment, and disclose anything that might give parties 'justifiable doubts' about the arbitrator's independence or impartiality.

ii. Tribunal secretaries. The rules expressly recognise that arbitrators cannot delegate decision-making to third parties, such as tribunal secretaries. Arbitrators can only appoint tribunal secretaries if the parties consent, after being provided with information about the secretary, their scope of work and remuneration.

iii. No dissenting opinions. The rules prohibit the disclosure of a dissenting arbitrator's opinion. The JCAA's rationale is that this will make awards harder to challenge.¹

iv. Amended expedited procedure. The expedited procedure will now be available in disputes worth up to JPY 50 million (USD 450,000),² to be heard by sole arbitrators, and in higher-value disputes if the parties agree to use the expedited procedure early in the arbitration. Expedited arbitrations will, in principle, be conducted on a documents-only basis (ie, without an oral hearing). Arbitrators must aim to issue an award within three months of appointment.

v. Arbitrator fees. Arbitrators will be paid a fixed hourly rate of JPY 50,000 (USD 450). However, this is subject to a cap depending on the value of the dispute. In addition, the hourly rate is subject to a 10% reduction for each 50 hours spent by the arbitrator above 150 hours, regardless of the amount in dispute, up to a maximum reduction of 50%. The parties can however agree to amend these provisions before the tribunal is constituted (but not afterwards).

vi. Administrative fees. The new rules raise the JCAA's administrative fees (payable by the claimant when submitting a request for arbitration), particularly in lower value cases. The lowest fee is JPY 500,000 (approximately USD 4,500), rising to a maximum of JPY 25 million (USD 225,000) in the highest-value cases.

Interactive Arbitration Rules

The JCAA's Interactive Arbitration Rules are an entirely new set of rules. They are similar to the Commercial Arbitration Rules, but differ in several important ways:

i. Tribunal's active role. The rules aim to reduce unnecessary work, costs and time by requiring the tribunal to communicate preliminary views about the dispute twice during the proceedings:

• Summary of issues. As early as possible in the arbitration, the tribunal must prepare a summary of each side's position, and the factual and legal issues in the arbitration. The tribunal must consult with the parties on this document.
• Statement of preliminary views. Before making any decision about whether to hold a hearing for witness evidence, the tribunal must provide the parties with a written summary of factual, legal and other matters that it 'considers important', and its preliminary views on those matters. The parties then have an opportunity to comment, before the tribunal decides whether an oral hearing is necessary. The tribunal's views are non-binding, and the parties agree not to challenge any arbitrator for expressing a preliminary view.

ii. Lower, fixed arbitrator fees. Unlike the Commercial Arbitration Rules, under the Interactive Arbitration Rules arbitrator fees will be fixed according to the value of the dispute. Fees in sole-arbitrator cases range from JPY 1 million (USD 9,000) for disputes worth less than JPY 50 million (USD 450,000), up to JPY 5 million (USD 45,000) for disputes worth at least JPY 10 billion (USD 90 million). These fees are considerably lower than the cap on arbitrator fees applicable under the Commercial Arbitration Rules.

Administrative Rules for UNCITRAL Arbitration

The Administrative Rules apply to UNCITRAL Rules arbitrations administered by the JCCA.

The main changes to these rules relate to arbitrator fees:

i. Higher arbitrator fees. Arbitrators in JCCA-administered UNCITRAL arbitrations will be paid USD 500 to USD 1,500 per hour, unless the JCAA determines otherwise with party agreement. Arbitrators will also no longer need to wait until the end of the arbitration to be paid, if all the parties agree.

The new remuneration system is designed to accommodate 'top arbitrators' in long-running UNCITRAL arbitrations.³ At the higher end, the new JCCA rates are significantly more than some other institutions' standard rates.⁴

ii. No other major changes. Recognising the need for flexibility in UNCITRAL arbitrations, the Administrative Rules aim to provide the 'minimum essentials'.⁵ The new rules do not introduce any other major amendments.

Practical points

The new rules take effect on 1 January 2019. This means that:

• JCAA arbitrations started before 1 January 2019 will continue under the outgoing rules, unless the parties agree otherwise.
• JCAA arbitrations started on or after 1 January 2019 will follow the new rules, even if the arbitration agreement designates a previous version.⁶

Parties wishing to use JCAA rules should be careful to designate the correct set of rules in their arbitration agreements. The Commercial Arbitration Rules will apply by default if an arbitration agreement refers simply to 'JCAA arbitration'.

Comment

Historically, the JCAA's caseload has been small – a reflection of the fact that arbitrations in Japan generally have tended to be fairly rare.⁷ Now, however, there are signs that arbitration is gaining traction.⁸

The JCAA's latest amendments cover a range of new features. Some of them reflect general trends in international arbitration since the JCAA's last rule update in 2015. Provisions on arbitrator disclosures, tribunal secretaries and greater use of expedition procedures fall into that category.

Other new features are more distinctive. In particular, the Interactive Arbitration Rules encourage tribunals and parties to focus on the key issues in dispute. These provisions bear some similarity to the new Prague Rules on Efficient Conduct of Introduction Arbitration, published in December 2018, which contain similar rules for the 'Proactive Role of the Arbitral Tribunal'. They allow the tribunal to provide preliminary views on issues in the arbitration and relevance of evidence submitted.⁹ However, unlike the Interactive Arbitration Rules, under the Prague Rules the tribunal is not obliged to provide preliminary views. The idea is that more interaction between tribunal and parties will avoid spending time and cost on unnecessary points.

In some ways, asking tribunals to give their preliminary views simply codifies the kind of signposting that some tribunals already provide through case management.¹⁰ But imposing a formal requirement on tribunals to state preliminary views is not risk-free. Arbitrators will need to get the balance right. Those that go too far risk appearing biased by expressing views before hearing all of the evidence. Although the rules include a waiver of challenges on that basis, issues may still arise about the effectiveness of such waivers in some situations.

Time will tell how the new rules will fare. At a minimum, they offer some innovative options for users seeking to address oft-cited concerns about the cost, speed and efficiency of the arbitration process.

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¹ JCAA, 'Reform of the JCAA Arbitrations Rules: Three Sets of Rules in Response to All Business Needs', p. 7 (available here).
² All USD conversions are approximate, and are based on the prevailing exchange rate at 1 January 2019.
³ JCCA, 'Reform of the JCAA Arbitrations Rules', p. 3 (see footnote 1 above).
⁴ For example, the LCIA's Schedule of Costs (Ad Hoc Arbitration) provides for arbitrators' hourly rates up to £450 (USD 570), although this can be raised with the consent of the parties and LCIA Court.
⁵ JCCA, 'Reform of the JCAA Arbitrations Rules', p. 3 (see footnote 1 above).
⁶ This is not clear from the new versions of the rules themselves, but the JCAA has stated that this will be the position: see JCCA, ‘Reform of the JCAA Arbitrations Rules’, p. 15 (see footnote 1 above).
⁷ Around 20 cases per year for the past 10 years: see Ohara, Ohno & Tsunemastu, 'Japan' in Asia-Pacific Arbitration Review 2019 (GAR, 2018).
⁸ For example, the number of Japanese and Japanese-owned parties to SIAC arbitrations more than doubled between 2016 and 2017 (from 13 to 27: see SIAC’s 2016 and 2017 Annual Reports, pp. 16 and 15, respectively, available here). There are other signs of growing interest: earlier this year, the Japan International Dispute Resolution Center opened its doors, offering hearing rooms and other arbitration/mediation facilities.
⁹ Article 2.4, Prague Rules, available here.
¹⁰ Tribunals often give interim insights into what they see as key issues in a dispute. For example, at case management hearings, or when deciding document requests or ruling on the scope of expert evidence.

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© 2019 White & Case LLP

Miquel Mirambell Fargas is a member of the Frankfurt Dispute Resolution Group. He mainly assists clients in international arbitration proceedings with particular focus on commercial disputes.

Before joining White & Case in 2018, he gained considerable expertise in international contract law, international commercial arbitration and international business management. He researches and publishes on contract law and international arbitration matters.

Scott is an associate in the Washington, D.C. office and a member of the firm's international arbitration practice group. He represents foreign sovereigns and private companies in disputes before international tribunals and U.S. federal courts.

Prior to attending law school, Scott served as a U.S. Army intelligence officer, completing tours of duty in Iraq and South Korea.

BREXIT COUNTDOWN ›
Our Brexit countdown illustrates the key dates and milestones on the road to Brexit. Discover more.

The EU (Withdrawal) Act 2018 requires Parliament to pass a motion approving the withdrawal agreement and the framework for the future relationship between the UK and the EU. This so-called 'meaningful vote' was due to take place on 11 December 2018 but was called off by the Prime Minister the day before, in the face of likely defeat. It has now been confirmed that the vote will proceed on 15 January 2019 (with press reports suggesting that the Government will provide further reassurances on the controversial Irish backstop). But what happens if MPs fail to vote for the deal next week? We look at some of the options.

Seek to renegotiate the withdrawal agreement

The Government could seek to renegotiate the terms of the withdrawal agreement and return to Parliament for a further vote. However, the EU's insistence to date - publicly at least - has been that it will not reopen the terms of the deal. The negative prospect of a hard Brexit both for the EU and the UK would potentially create some incentive for both sides to revisit aspects of the deal. However, the complexity of the issues involved – in particular the Irish border question – means that some delay of the current 29 March 2019 exit date would almost certainly be needed for this option to be realistic.

Extension of the 29 March 2019 deadline

Importantly, it is not possible for the UK Government unilaterally to extend the exit date. However, it could seek to negotiate an extension with the EU; Article 50 expressly allows for a postponement of withdrawal provided there is unanimous agreement by the remaining Member States. This option would allow further dialogue to take place and possibly a redefinition of the conditions for the UK's exit from the EU, such as the operation of the Irish backstop. The EU's agreement to any extension would turn upon many factors. In particular, the timing of elections for the European Parliament (on 26 May 2019) may limit the scope – politically - for the EU to agree to an extension. However, such political considerations may be outweighed by the negative consequences for the EU of a 'no-deal' Brexit, which will become increasingly acute and tangible as 29 March approaches.

Put the process in the hands of Parliament

On 4 December 2018, MPs approved an amendment, tabled by the former Attorney General Dominic Grieve MP, to the wording of the parliamentary motion dictating the procedure for the meaningful vote. The amendment gives MPs the power to instruct the Government what action to take in the event the meaningful vote is lost. However, the options Parliament could instruct the Government to pursue are likely to be limited to those already available to the Government, as outlined above.

Seek to avoid Brexit altogether

On 10 December 2018 – the day before the meaningful vote was first due to take place - the Court of Justice of the European Union (CJEU) ruled in Case C-621/18 Wightman v Secretary of State for Exiting the European Union that the UK can unilaterally withdraw notice of its intention to leave the EU under Article 50. The CJEU held that an Article 50 notification can be unilaterally revoked if (1) the revocation is made in writing to the European Council, (2) the revocation is clear and unequivocal, (3) no withdrawal agreement has entered into force and (4) the revocation is made in accordance with the Member State's constitutional requirements. The door is therefore open for the UK to reconsider its decision to exit the EU. However, the result of the 2016 referendum likely makes such a move politically impossible, absent a further referendum.

A second referendum

There are numerous difficulties associated with holding a second referendum – not least the thorny issue of what question(s) should be put on the ballot paper. Given the need for clarity on this, and in light of the uncertainty on the final withdrawal agreement deal on offer, it seems likely that a second referendum could – at most – either confirm the people's wish to leave the EU (without any real precision as to the terms or manner of departure) or mandate the UK Government to revoke Article 50.

Withdraw without an agreement

A 'no-deal' Brexit is strenuously opposed by business, and would have serious implications not just for the UK and the UK's relationship with the EU (and vice versa) but also the UK's relationships with third countries.

There also appears to be a majority in Parliament against a no-deal outcome. Efforts by various MPs to avoid a no-deal Brexit are increasing in number and urgency. Press reports suggest that over 200 MPs from across the political parties have signed a letter to the Prime Minister urging her to rule it out. On 8 January 2019, MPs backed a cross-party amendment to the Finance Bill, which would limit the scope for tax changes following a no-deal unless authorised by MPs. While the practical implications of the amendment are limited, the move arguably demonstrates the strength of opposition in the House of Commons to a no-deal Brexit. Further, on 9 January 2019 the House of Commons will debate an amendment which would force the Prime Minister to present a 'Plan B' within three sitting days of the vote being lost.

In the last few days before the re-run of the meaningful vote, the Government is outwardly still looking to secure Parliamentary consensus to the existing withdrawal agreement. That may yet prove possible. Should it not be, Parliament will surely want to do everything it can to avoid the negative economic, political and social consequences of a no-deal Brexit. In the circumstances, an extension of the 29 March 2019 deadline would represent a positive outcome at this stage of the process, at least in the short term. The fundamental questions around the UK's exit from the EU would still have to be resolved.

Meanwhile, certain Member States have started to prepare emergency legislation, aiming to provide for a grandfathering of certain rights for a transitional period in case of a no-deal Brexit. This could allow, for example, UK financial services firms to continue doing business for a limited period of time in such countries on the basis of their existing UK licences.

We are monitoring developments and will issue further alerts over the coming weeks.

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Natalia Tchoukleva is an associate in the Firm's International Arbitration Practice Group.

She represents private entities and sovereign states in proceedings before leading arbitral institutions, including the International Centre for Settlement of Investment Disputes (ICSID) and the International Chamber of Commerce (ICC).

Natalia is also actively involved in pro bono matters at the Firm, with a focus on asylum law and human rights. She has represented an asylum applicant in immigration proceedings as well as collaborated with the United Nations Development Program in monitoring the implementation of the UN Sustainable Development Goals.

During law school, Natalia was an article editor for the Berkeley Journal of International Law and chair of the International Human Rights Workshop. She was also a trainee at the European Court of Human Rights.

Prior to attending law school, Natalia worked as a paralegal in a leading international law firm where she gained experience in public international law and international arbitration.

Natalia has studied in the United States, Spain, Italy and Bulgaria.

Global law firm White & Case LLP arbitration partners, Dipen Sabharwal and Aloke Ray, have been appointed Queen's Counsel by Her Majesty The Queen on the advice of the Lord Chancellor, David Gauke MP, following consideration by the independent Queen's Counsel Selection Panel.

"A huge congratulations to our two partners, Dipen Sabharwal and Aloke Ray, on their appointments to Queen's Counsel," said White & Case London Office Executive Partner Melissa Butler. "This is a testament to the quality of our arbitration practice, our English law expertise and, of course, Dipen and Aloke, two highly respected and longstanding White & Case arbitration partners."

"Aloke and Dipen are both talented and experienced stand-up advocates," said White & Case partner Paul Friedland, Global Head of the International Arbitration Practice. "Their appointments reflect their skill and expertise."

The award of Queen's Counsel (also known as silk) is for excellence in advocacy and is made to advocates who have rights of audience in the higher courts of England and Wales and who have demonstrated the competencies in the requisite framework to a standard of excellence. Dipen and Aloke will formally become silks when they make their declaration before the Lord Chancellor at a ceremony on 11 March 2019 at Westminster Hall.

Partner and Regional Section Head, EMEA Disputes, Dipen Sabharwal, joined the Firm in 2003 and was promoted to partner in 2012. Dipen advises clients on international arbitrations conducted under all the major institutional regimes as well as ad hoc arbitrations. He has represented both sovereigns and corporate clients in a broad range of industries, including oil and gas, infrastructure, technology and media, acting as counsel in arbitrations across the world, including in London, Geneva, New York, Singapore, Stockholm, Zurich, Riyadh and Tokyo.

Partner and co-Head of the International Arbitration Practice in London, Aloke Ray, joined the Firm in 1999 and was promoted to partner in 2006. Aloke represents clients in international arbitrations under the rules of all major arbitral institutions, with a particular focus on disputes in the oil and gas, power, construction, financial services and telecommunications sectors. In addition to London, he has practiced in White & Case' offices in New York, from 2002 to 2007, and Singapore, from 2009 to 2016.

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Global law firm White & Case LLP has expanded its Global International Arbitration Practice with the arrival of Silvia Marchili as a partner who will focus on the Houston market and be based in due course in Miami.

"Silvia is a dynamic lawyer with strong client relationships and an impressive track record advising on high-stakes international arbitration disputes," said Paul Friedland, White & Case's Global Head of International Arbitration.  

Marchili's practice focuses on complex international arbitrations involving investment and commercial claims. An Argentine with more than a decade of experience based in the US,  she brings with her extensive experience in international arbitration and litigation involving Latin America, including Spanish-language fluency. 

"Our Latin American Arbitration Practice is growing from a position of great strength across offices with a strong focus on the region," said Jonathan Hamilton, Head of White & Case's Latin American Arbitration Practice. "Silvia's arrival complements and strengthens the market-leading Spanish-language capacity of our Practice."

Marchili has expertise across a variety of sectors including oil & gas, power and construction. She joins White & Case from King & Spalding, where she worked as a partner in its international arbitration practice. 

"White & Case is a leading law firm for international arbitration, and the addition of Silvia reinforces our commitment to having a top-tier practice across the Americas," said Jason Zakia, White & Case's Head of Americas Disputes. "Her experience will add great depth to our practice and add real value for our clients."

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Silvia M. Marchili focuses on complex international arbitration cases involving investment and commercial claims. She handles international arbitration and litigation matters involving Latin America and Africa, and a variety of sectors, including oil and gas, power, construction, mining, air transportation, and infrastructure. Silvia is bilingual and trained in both civil and common law.

With more than 15 years of experience, Silvia represents parties in investment arbitrations before international tribunals under the World Bank's International Centre for the Settlement of Investment Disputes Convention, as well as under other arbitration rules. In recent cases, she has obtained some of the largest ICSID Bilateral Investment Treaty awards ever received by foreign investors. An expert in investment arbitration, Silvia co-authored, with R. Doak Bishop, the treatise Annulment Under the ICSID Convention (Oxford University Press).

In commercial arbitrations, Silvia has represented parties in cases under the International Chamber of Commerce, London Court of International Arbitration, UN Commission on International Trade Law, Inter-American Commercial Arbitration Commission, International Centre for Dispute Resolution and Houston Maritime Arbitrators Association rules.

Originally from Buenos Aires, Argentina, Silvia is fluent in Spanish and English, and has working knowledge of Italian and French, along with a basic understanding of German. She is a frequent author and speaker on arbitration and dispute resolution.

Chambers Global ranked Silvia as an expert in dispute resolution and Latin Lawyer selected her as a leading practitioner in Latin America.  In 2017, Who's Who Legal-International Arbitration ranked Silvia as a top-ten young leader in the Americas, quoting a source who stated that Silvia "is very smart and has a great ability to discern the relevant factual and legal issues to be able to attack all of them in a very methodical and effective way." Most recently, Chambers Latin America selected Silvia as an expert in international arbitration and quoted a source, which stated that Silvia "really knows what she's doing in terms of strategy and all aspects of the law."

She is active in several international law and international arbitration organizations, serving as a Member of the FDI Moot Advisory Board, Chair of the Young ITA, and North America regional representative at the ICC Young Arbitrators Forum.

Emiko Singh is an associate in White & Case's Dispute Resolution group based in London, whose practice focuses on international arbitration.

Emiko has a broad range of experience representing companies, states and individuals on cross-border arbitrations under the LCIA, ICC and UNCITRAL Rules. Emiko has represented clients on matters ranging from shareholders' and financial services disputes to investor-State disputes and also has substantial experience representing corporate and financial services clients in commercial disputes before the UK courts.

Emiko also regularly advises clients on compliance with the UN Guiding Principles on Business and Human Rights and the Modern Slavery Act.

A competitive world: Modernisation and innovation in the courts

With ongoing advances in technology and communications, the number of contracting parties looking beyond their local jurisdiction when choosing a dispute resolution forum continues to grow

It is easier than ever for contracting parties to look beyond their home jurisdiction when choosing a dispute resolution forum. The growth in the international disputes market has forced countries’ courts into competition with one another, and contracting parties who have had a negative experience in one jurisdiction can simply select an alternative.

Against this backdrop, we examine the differences in approach of eleven jurisdictions, providing an at-a-glance overview of the key features of each jurisdiction, as well as more detailed examination of key elements of the court system, including judicial process, costs and disclosure obligations.

Our comparative table includes jurisdictions with established popularity such as England and Wales, and the US, those whose popularity has increased rapidly over the last decade or so, such as Singapore and Hong Kong, and those currently making concerted efforts to increase their share of the international disputes market, such as the Dubai International Financial Centre.

Click here to download the full report (PDF)

Click here to request your free hard copy of the report

Contacts

Charles Balmain Partner, London T +44 20 7532 1807 Ecbalmain@whitecase.com	Carine Piadé Counsel, Paris T +33 1 55 04 15 98 Ecpiade@whitecase.com
Ken Caruso Partner, New York T +1 212 819 8853 Ekcaruso@whitecase.com	Alexa Romanelli Associate, London T +44 20 7532 2461 Ealexa.romanelli@whitecase.com
Melody Chan Partner, Hong Kong T +852 2822 8750 Emchan@whitecase.com	Jenna Rennie Associate, London T +44 20 7532 2710 Ejenna.rennie@whitecase.com
Nathalie Colin Partner, Brussels T +32 2 239 25 32 Encolin@whitecase.com	Anne Véronique Schlaepfer Partner, Geneva T +41 22 906 9898 Eanneveronique.schlaepfer@whitecase.com
Amanda Cowell Partner, London T +44 20 7532 1818 Eacowell@whitecase.com	Matthew Secomb Partner, Singapore T +65 6347 1325 Emsecomb@whitecase.com
Niklas Forsmark Helmer Counsel, Stockholm T +46 8 506 32 324 Eniklas.forsmark-helmer@whitecase.com	Stephanie Stocker Associate, London T +44 20 7532 1852 Estephanie.stocker@whitecase.com
Luka Kristovic Blazevic Partner, Dubai T +971 4 381 6251 Elkristovicblazevic@whitecase.com	Michael Turrini Partner, Dubai T +971 2 611 3440 E mturrini@whitecase.com
Markus Langen Partner, Frankfurt T +49 69 29994 1221 Emlangen@whitecase.com	Julia Zagonek Partner, Moscow T +7 495 645 4931 Ejzagonek@whitecase.com
Philippe Métais Partner, Paris T +33 1 55 04 15 82 Epmetais@whitecase.com

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© 2019 White & Case LLP

Investors in the water industry in the UK are well advised to consider if their shareholding structure affords them appropriate investment treaty protection and access to investment arbitration in the event of possible nationalisations and inadequate compensation.

Labour Party plans to nationalise the water industry in the UK

In 2017, the Labour Party announced its manifesto setting out a programme that it vowed to implement if elected. As part of its programme for "Creating An Economy That Works For All," the Labour Party proposed a nationalisation plan aimed at "Widening ownership of our economy," in particular with respect to the water industry:

"Across the world, countries are taking public utilities back into public ownership. Labour will learn from these experiences and bring key utilities back into public ownership to deliver lower prices, more accountability and a more sustainable economy. We will (…) [r]eplace our dysfunctional water system with a network of regional publicly-owned water companies. (…)

"Public ownership will benefit consumers, ensuring that their interests are put first and that there is democratic accountability for the service."¹

If the Labour Party prevails in the election and forms a Government, it may proceed with implementing its nationalisation plan, which would impact investors in the UK water industry. The water industry may not be the only one affected as the Manifesto sets out similar plans for other sectors, including rail and energy.

Investors in the UK water industry risk being adversely affected

There are few details presently available regarding the mechanism through which Labour's nationalisation plan for the water industry would be implemented. There are a range of possibilities, including, for example, forced acquisitions of the water industry's assets and/or of the water companies themselves. Regardless of the mechanism, there is a risk that the nationalisation would adversely affect current private shareholders of such companies.

If the nationalisations are carried out, they likely would be accompanied by compensation in order to comply with UK law. At this stage, however, it is unknown whether and what influence owners of the affected companies would have on valuation of the assets, compensation and the form of its payment. It also may prove difficult for the affected shareholders to dispute the amount offered before the local authorities or courts in the event they disagree with the Government's assessment.

Given these uncertainties, investors in the water industry in the UK are well advised to take action to protect themselves in the event their investments are nationalised and compensation offered by the Government falls below the standard due under international law.

Investment protection and arbitration may safeguard interests of affected investors

While any potential nationalisation is a multifaceted issue, certain investors in the UK water industry may challenge any nationalisation if it fails to meet the requirements of international law, as well as any offer of compensation, if it falls short of fair market value. Qualified investors may do this through international arbitration pursuant to an investment protection treaty, such as a bilateral investment treaty ("BIT") concluded by the UK with other States. In its BITs, the UK has undertaken obligations towards foreign investors and their investments, including, in particular, to protect their investments from uncompensated nationalisations or expropriations.

Notably, BITs commonly include dispute settlement provisions that permit a covered investor to bring an arbitration claim directly against a State alleging a violation of the State's obligations under the treaty. This could prove to be an effective recourse in the event that any nationalisation carried out in the UK fails to be accompanied by prompt, adequate and effective compensation.

Affected qualifying investors could bring a claim directly against the UK before an international arbitration tribunal requesting an appropriate level of compensation:

(i)The tribunal would be convened and proceed under the rules stipulated in a BIT or agreed by the parties (such as the arbitration rules of the International Centre for Settlement of Investment Disputes ("ICSID"), Stockholm Chamber of Commerce, or UNCITRAL).

(ii)The tribunal would often be composed of three independent and impartial arbitrators (one appointed by the investor, one by the State and the third, serving as chairperson, in accordance with the agreed method).

(iii)Upon the constitution of the tribunal and in accordance with the timetable set out by the tribunal in agreement with the parties, the parties would typically present their requests for relief and arguments, together with supporting factual, legal, and expert evidence, in written submissions usually followed by an oral hearing.

(iv)Upon consideration of the material and arguments presented by the parties, the tribunal would issue an award. An ICSID award issued by a tribunal is directly enforceable under the ICSID Convention in more than 150 States, and an arbitral award rendered under other arbitration rules is enforceable under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in more than 150 States as well.

Thus, investment arbitration offers certain advantages compared to seeking redress before local authorities or courts. Investors who can rely on a BIT concluded between the UK and their country of origin (home State) may therefore be in a beneficial position.

(Re)structuring of investments in the UK through certain jurisdictions can ensure an appropriate level of investment protection and access to investment arbitration

Investors who currently cannot benefit from any applicable investment treaty may wish to consider restructuring their investment to avail themselves of an appropriate level of investment protection and access to investment arbitration. This often can be done by introducing a (holding) company incorporated in a State with which the UK has concluded a BIT into the corporate structure of the UK company. In the event of a later alleged violation by the UK of its obligations under the applicable BIT, the holding company could seek recourse in arbitration directly against the UK.

Corporate (nationality) planning and (re)structuring of investments are permissible and corporate groups are routinely restructured for a variety of reasons. However, an arbitral tribunal constituted to resolve an investment dispute may refuse to exercise jurisdiction or admit a claim in certain situations, particularly where the restructuring took place after the alleged violation or after a dispute arose with the purpose of obtaining access to international arbitration. It is therefore important to structure investments to ensure access to international investment protection and arbitration before the onset of a dispute.

Given our extensive experience and knowledge of the field, we are well positioned to advise you on options for protecting your investments in the UK. We would be pleased to assist you with strategic and other, such as tax, considerations to provide you with comprehensive and tailored advice on (re)structuring your investments in cooperation with our colleagues in our local offices, as and when necessary.

There is a network of almost 100 BITs concluded by the UK that are currently in force. Not all of these BITs are equally attractive in terms of offering adequate investment protection and access to investment arbitration. For example, certain BITs do not accord protection to indirect investments or do not include a broad unconditional offer to arbitrate investor-State disputes.

Examples of jurisdictions that could prove attractive from the investment (re)structuring perspective include Hong Kong, Korea, Singapore and the United Arab Emirates. The BITs concluded by the UK with each of these jurisdictions provide a good level of investment protection and access to investment arbitration. In addition, all of these are well-established financial centres located outside of the European Union (the "EU").

The latter is of importance given the possible implications of the Achmea (Case C-284/16) judgment issued by the Court of Justice of the European Union dated 6 March 2018, which held that the arbitration provision contained in the Netherlands-Slovak Republic BIT is incompatible with EU law. That judgment can have significant consequences for investment arbitration under other BITs concluded between two EU Member States ("intra-EU BITs"). As long as the UK remains an EU Member State, bringing a case under any of the UK intra-EU BITs presents additional complications. Further complications may arise with respect to those UK BITs with certain EU Member States, such as Poland and Romania, which have decided to terminate their intra-EU BITs in light of the Achmea case.

Market leading infrastructure M&A practice

Our market-leading infrastructure M&A team provides seamless advice on all aspects of acquisitions, disposals, joint ventures, co-investments, financings, refinancings and restructurings in the infrastructure sector as well as "through life" support after completion of transactions. 

We regularly work with financial sponsors, including private equity houses, specialist infrastructure funds, sovereign wealth funds and pension funds, as well as corporates, utilities and government entities.  Our team also advises our financial sponsor clients' lenders.  We understand the commercial drivers for our clients and for their counterparties and competitors.  Our team has a breadth of experience of advising clients on transactions across the full spectrum of the infrastructure sector, from regulated/core utilities through to core plus infrastructure assets.

Top ranked investment arbitration practice

White & Case is the leading firm globally for investment arbitration. We routinely advise clients on structuring their investments and we have extensive experience representing claimants in investment arbitrations.

Number One International Arbitration Practice globally
Global Arbitration Review 2015- 2018

Ranked Band 1 – International Arbitration
Chambers Global 2018

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¹ The Labour Party Manifesto 2017 (9548_17), by Iain McNicol, General Secretary, the Labour Party, on behalf of the Labour Party, p. 19.

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Nicole Katja Krug is a member of the Frankfurt Dispute Resolution Group. She mainly assists clients in in national and international litigation and arbitration proceedings with particular focus on commercial disputes.

Before joining White & Case in 2018, she gained international commercial litigation experience with an international law firm in Frankfurt and a German automotive manufacturer.

She has studied law at the University of Passau.

The German Federal Court of Justice holds that third-party funding in actions for confiscation of profits pursuant to Section 10 of the German Act Against Unfair Competition (UWG) is inadmissible.

Background

For about 18 years now, commercial litigation and arbitration cost financing ("litigation funding") has gained more and more attention in the German legal community – as an actual phenomenon, but especially with regard to its legal implications. FORIS-AG was the first to offer commercial financing of litigation costs as an alternative to risk provision through the legal expenses insurances widely used in Germany. Since then, numerous other domestic and international providers joined in. The German legislator reacted with the prohibition of financing third-party legal costs for lawyers, tax consultants, auditors and patent attorneys, effective as of 1 July 2008. Accordingly, cost risks can currently only be assumed by commercial providers. The business model of litigation funders is to finance litigation-related costs fully or partially in exchange for a share of the proceeds or a multiple of their investment.

The Case

On 13 September 2018 (I ZR 26/17), the German Federal Court of Justice (BGH) dealt with the appeal of a telecommunications company against a consumer association, which had claimed for the confiscation of profits (Gewinnabschöpfung) to the federal budget pursuant to section 10 UWG. The concept of "confiscation of profits" aims at taking away unlawfully made profits from a wrongdoer (the German word "abschöpfen" alludes to cream on milk). Such an action does not require a damage on the plaintiff’s side, but relates solely to the profits made by the defendant.

The plaintiff is registered as a non-profit consumer protection association in the list of qualified institutions according to section 4 of the Act on Injunctions for the Protection of Consumers’ Interests (UKlaG). Its statutory duties include safeguarding consumer interests and promoting consumer protection. The defendant is a telecommunications enterprise, which, inter alia provides services to consumers. The plaintiff argues the defendant committed a deliberately unfair commercial act, and thereby made an unlawful profit at the expense of a large number of customers.

The first and second instances ruled in favour of the consumer association and ordered the telecommunications provider to assert its unlawfully generated profits to the federal budget, accepting that a share of these profits would be paid to a litigation funder. However, the German Federal Court of Justice dismissed the claim as inadmissible. It held that consumer associations may not promise a litigation funder any shares of the profits gained because this would amount to an abuse of rights (section 242 of the German Civil Code, which applies not only to questions on the merits but also on procedural conduct).

The Court's decision is based upon an interpretation of the meaning and purpose of section 10 UWG. The Court held that the legislator explicitly wanted to avoid that an action for confiscation of profits is brought based on extraneous motives, such as the financial interests of a litigation funder.

The Court did not consider it relevant that the Federal Office of Justice (a body subordinated to the Ministry of Justice) had approved the litigation financing agreement. It left open whether such an approval qualified as administrative act and concluded that, in any event, the Federal Office of Justice did not have jurisdiction as to the conduct of legal proceedings regarding the confiscation of profits.

Section 10 (1) UWG is intended to prevent the claim being based on the unrelated motive of seeking revenue. It contradicts this objective if the conduct of such proceedings would depend on the cost-benefit analysis of a litigation funder.

Litigation funding is also not required to enable consumer associations to bring actions under section 10 UWG since they may apply for a reduction in the amount in dispute (section 12 (4) UWG and section 51 (5) of the German Court Fees Act (GKG)), which reduce the costs and the litigation risks.

Future Outlook

The decision emphasises the particularities of the German legal system regarding mass proceedings. The German legislator has long been reluctant to introduce procedural mechanisms akin to class actions. Instead, non-profit consumer associations are entitled to sue wrongdoers with the aim of confiscating the profits unlawfully generated. The confiscated profits go the federal budget. This mechanism used in connection with section 10 UWG and section 34a of the German Act Against Restraints of Competition (GWB).

The decision is relevant for the confiscation of profits in all of the mentioned contexts. While directly dealing with section 10 UWG only, the reasoning that confiscation is meant not to be influenced by commercial considerations of the plaintiff applies to competition law-based actions and sample declaratory actions alike. In particular, regarding the latter, the Court's decision might further reduce the practical relevance of the sample declaratory action.

The good news for litigation funders is that the decision is not likely to affect the general principle established by the German Federal Court of Justice, according to which, litigation funding is admissible in civil proceedings. Indeed, the reasoning is specific to confiscation of profits by non-profit consumer association and cannot be transferred to damages claims.

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In its annual "Top Law Firms" rankings for 2019, Latin America business news and analysis service Latinvex ranked White & Case Number 1 in Latin American Arbitration. Building from a position of strength, the Firm added partners focused on Latin American arbitration in its Houston and Miami offices, in addition to Latin America-focused promotions in Washington, DC. This is the third year in a row that Latinvex has named White & Case the top firm for arbitration in Latin America.

Latinvex also named three White & Case partners in its annual list of the "Top 100 Lawyers" in Latin America, including Head of Latin American Arbitration Jonathan C. Hamilton (Washington, DC), Taisa Markus (New York) for capital markets and banking and finance, and Sabrena Silver (New York) for banking and finance.

"White & Case has developed over many years a platform for collaboration across offices and practices spanning deals and disputes in Latin America," commented Hamilton. "We are glad to see the market taking notice."

Latinvex determines its rankings based on factors such as scope and prominence of work and the number and type of staff allocated to Latin America at the firm, matter value and the evaluations of clients and peers.

White & Case is pleased to host a seminar focusing on developments in:

• The Andes and Southern Cone
• Mexico and Central America
• Brazil and Portugal
• Spain

Featuring:

• Jonathan C. Hamilton, Washington, DC
• Rafael Llano, Mexico City
• Silvia Marchili, Houston/Miami
• Francisco Jijón, Washington, DC
• Jorge Mattamouros, Houston
• A special guest from Madrid

White & Case LLP
Tuesday, March 5, 2019
5:00 p.m. Registration
5:30 p.m. – 6:30 p.m. Panel
6:30 p.m. Reception

701 Thirteenth Street NW
Washington, DC 20005

White & Case
"A powerhouse at the forefront of Latin American international arbitration"— The Legal 500

To register, click here.

Legal media company Lawdragon has named White & Case partner Carolyn Lamm (Washington, DC) to the 2019 Lawdragon 500 Leading Lawyers in America "Hall of Fame."

According to Lawdragon, Hall of Fame inductees are a "permanent group of honorees" whose stature entitles them to a lifetime listing in the Lawdragon 500, a compendium of leading American lawyers. The lawyers in the Lawdragon 500 are selected through a process combining law firm submissions, votes and comments made through Lawdragon's online voting form, and Lawdragon's own editorial research.

Lamm regularly serves as lead counsel in high-stakes, cutting-edge international arbitration cases involving international corporations and sovereign clients. She advises clients in matters with ICSID and its Additional Facility, and in other international arbitral proceedings involving states, as well as commercial arbitral fora including AAA/CDR, ICC, Vienna Centre, Stockholm Chamber and Swiss Chamber. She is Chairman of the Board of the American Uzbek Chamber of Commerce, Vice President of the American Bar Endowment and an Emeritus member of the Council of the American Law Institute. Lamm was appointed by President Bill Clinton to the US Panel and later by the Government of Uzbekistan to the Uzbek Panel of Arbitrators for ICSID arbitration. A member of the Governing Board of ICCA, she is a past president of both the District of Columbia Bar and the American Bar Association, and recently finished a term as the American Bar Association's Representative to the International Bar Association.

Compensatory damages, as the name indicates, are intended to compensate a claimant for losses suffered as a result of the other party's (wrongful) conduct. Those losses can be pecuniary (e.g., costs, loss of profit, related expenses) or non-pecuniary (e.g., for pain and suffering, loss of reputation).² The basic rule, in one common law formulation, is that a claimant is entitled to 'that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation'.³  This rule is formulated in similar terms in civil law jurisdictions – for example, French law recognises the principle of full compensation, the objective of which is to put the injured party in the position in which it would have been had the act that gave rise to the damage not occurred.⁴

This chapter will provide a comparative overview of the legal principles and elements of compensatory damages in civil law and common law jurisdictions, with a focus on contractual damages.There are several reasons why such a comparative analysis is important for international arbitration practitioners. It is common for disputes underlying international arbitrations to be governed by a range of applicable national laws, so it is important to be familiar with the broad principles of their substantive content – or, at least, of two of the main legal traditions,⁵ though the differences among national laws within those traditions should not be underestimated.While there is certainly a lot of common ground in relation to the legal principles and elements of compensatory damages claims in common and civil law jurisdictions, there are also differences, as described in more detail in the sections below. As advocates, it can be useful to be attuned to these differences when formulating written or oral pleadings, particularly where the arbitral tribunal is of mixed legal backgrounds.

While certainly less prevalent than national laws in international arbitration, transnational principles can also play a role in damages analyses in international arbitration, either where parties have agreed to apply them or where tribunals have cited them as a means of reinforcing or supplementing the applicable law.⁶ These principles may be influential even where not directly applicable and include, for example, those codified in instruments such as the 2010 UNIDROIT Principles of International Commercial Contracts (the UNIDROIT Principles), which 'reflect concepts to be found in many, if not all, legal systems'.⁷ Understanding the origin of these transnational principles is important preparation for their application.

As a final note, arbitration clauses sometimes contain broadly worded consents to arbitration that may be interpreted to include non-contractual (i.e., tortious or delictual) claims.⁸ However, the focus of this chapter will be on compensatory damages arising out of contractual claims. In addition, we do not consider non-compensatory damages, damages principles under the Convention on Contracts for the International Sale of Goods (CISG), contractual limitations on damages, damages in investment arbitration, interest and costs. These topics are addressed in other chapters of this publication. .... Click here to download the full chapter (PDF) »

¹ Clare Connellan and Elizabeth Oger-Gross are partners at White & Case LLP. Angélica André is an associate at White & Case LLP. The authors thank Heather Clark for her contribution to the first edition of this chapter.
² H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 2-001. As discussed below, there are restrictions on a party's ability to recover non-pecuniary losses in common law jurisdictions. See, e.g., Common Law Series: The Law of Damages/Part I General Principles/Chapter 4 Damages for non-pecuniary loss/E Disappointment, distress, humiliation and loss of enjoyment/Contract.
³ H. McGregor, McGregor on Damages (20th ed. Sweet & Maxwell, London 2017), Section 2-002, citing Livingstone v. Rawyards Coal Co [1880] 5 App Cas. 25 at 39.
⁴ Full compensation is the authors’ translation of the French term 'réparation intégrale'. See A. Bénabent, Droit des obligations (16th ed. L.G.D.J. Précis Domat, 2017) 683. See also H.Wöss and others, Damages in International Arbitration under Complex Long-Term Contracts (OUP, Oxford 2014) para. 2.03.
⁵ A discussion of compensatory damages principles under other legal traditions is beyond the scope of this chapter.
⁶ See E. F. Agrò, ‘The Impact of UNIDROIT Principles on International Dispute Resolution in Figures', www.unidroit.org/english/publications/review/articles/2011-3-finazzi-e.pdf, 721. The UNIDROIT provisions on damages were among those most frequently invoked by arbitral tribunals and domestic courts. See also P. Gélinas, 'General Characteristics of Recoverable Damages in International Arbitration' in Y. Derains and R. H. Kreindler (eds), Evaluation of Damages in International Arbitration, Dossiers of the ICC Institute of World Business Law, Volume 4 (Kluwer Law International; International Chamber of Commerce (ICC) 2006) 11, 20-29.
⁷ UNIDROIT Principles of International Commercial Contracts (UNIDROIT 1994), Introduction, xxiii (PDF 22).
⁸ See, e.g., ICC Case 9517, Interim Award, November 1998: 'The Arbitrators find that the scope of the wording of the arbitration clause "any dispute arising in connection with this Agreement" is clear and does not lend itself to construction. It is very wide and covers any claim which arises, directly or indirectly, with any relationship to the Management Agreement, and whether the claim is contractual or delictual of nature. There is also no basis for constructing the clause or the ICC Rules as applicable only to commercial disputes. The claims raised are, therefore, within the scope of the arbitration clause.'

An extract from the third edition of GAR's The Guide to Damages in International Arbitration, first published in December 2018.

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Douglas Jensen has more than 30 years' experience as a white-collar defense attorney, commercial litigator, criminal prosecutor and trial lawyer. He has successfully represented executives and corporations caught up in the major criminal and regulatory investigations pursued over the last decade by the U.S. Department of Justice, the Securities and Exchange Commission and other government agencies. In all but a small number of cases, Douglas’ clients have avoided the filing of any criminal charges, and in many instances have avoided regulatory charges. Douglas has also obtained favorable results for his clients in high-stakes civil litigations and arbitrations, conducted multiple internal investigations, and served as an independent monitor for corporations subject to government investigations.

Before joining White & Case, Douglas was a co-founder and managing partner of a boutique white collar criminal defense firm. Prior to that, he was a partner in the New York office of a national law firm and served for 11 years as Assistant U.S. Attorney in the Southern District of New York. He held multiple supervisory positions in the US Attorneys’ office, including that of Deputy Chief of the Criminal Division, and Chief of the Narcotics Unit. Douglas tried or supervised dozens of jury trials, including securities fraud, money laundering, narcotics and mail and wire fraud cases. 

Global law firm White & Case LLP has secured a substantial victory for PT Ventures SGPS, S.A., a Portuguese telecommunications company ultimately majority owned by Oi SA, the Brazilian telecommunications company, in an ICC arbitration related to PT Ventures' shareholding in Unitel S.A., Angola's largest telecommunications company.

The dispute concerned alleged breaches of a Shareholders' Agreement governed by Angolan law and is at the forefront of a battle for control of one of Africa's leading GSM network operators.

In October 2015, PT Ventures brought the arbitration against the three other shareholders in Unitel: Vidatel Ltd., a BVI company owned by Isabel dos Santos, the daughter of the former president of Angola and widely considered to be one of the richest women in Africa; Geni SA., majority owned by General Leopoldino do Nascimento, a prominent business and military figure in Angola; and Mercury Serviços de Telecomunicações SA., owned by Sonangol, the Angolan state oil company.

In February 2019, the tribunal handed down its Final Award in the arbitration, holding that:

• the other shareholders had repeatedly breached their obligations to PT Ventures as set forth in the Shareholders' Agreement
• these breaches had significantly decreased the value of PT Ventures' stake in Unitel
• the other Unitel shareholders were liable for certain dividends that were not paid to PT Ventures.

The tribunal ordered the other Unitel shareholders to pay PT Ventures an amount totaling more than US$650 million plus interest, along with arbitration fees and costs of over US$12 million. The tribunal also dismissed the counterclaim against PT Ventures.

The matter was notable for being the first-ever ICC arbitration to be heard before a tribunal of five arbitrators. The President of the tribunal was Klaus Sachs, and the other members were Bernard Hanotiau, David Arias, Marcelo Roberto Ferro and Luca Radicati di Brozolo.

The White & Case team which represented PT Ventures in the arbitration was led by partners John Willems, Christophe von Krause (both Paris) and John Rogerson (London), with support from associates Lucas de Ferrari, Sven-Michael Volkmer, Samy Markbaoui, Hadia Hakim, Hazel Levent, Faustine Chapelin, Fadi Hajjar, Mounia Larbaoui (all Paris) and Gwen Wackwitz (London).

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