News In Brief – Summer 2011

International Law Commission Adopts Articles on the Responsibility of International Organizations
On 3 June 2011, the International Law Commission (ILC) adopted the Draft Articles on the Responsibility of International Organizations (RIO). The adoption of the Draft Articles is a historic occasion, having been the subject of the ILC’s attention for nearly 60 years. The Chairman of the Drafting Committee described it as: “unquestionably one of its most important contributions to the codification and progressive development of international law.”

First ICSID case brought against China
On 24 May 2011, ICSID registered its first ever claim brought by an investor against China (Ekran Berhad v. People’s Republic of China (ICSID Case No. ARB/11/15)). The landmark case is being brought by a Malaysian construction company in relation to arts and culture facilities. A tribunal to hear the case will be constituted in the coming months.

Third-party funding should not affect costs recovery
In a decision issued on 28 April 2011, an ICSID ad hoc Committee discontinued the annulment proceeding in RSM Production Corporation v Grenada (ICSID Case No. ARB/05/14). The Tribunal discontinued the proceeding on the basis that the applicant RSM had failed, despite receiving repeated requests to do so, to make an advance payment to cover the direct costs of the proceeding.

The ad hoc Committee further rejected the Applicant’s submission that costs should not be awarded to the Respondent where those costs had been met by “an undisclosed third party”. In doing so, the ad hoc Committee affirmed the earlier decision of Ioannis Kardassopoulos and Ron Fuchs v Georgia (ICSID Case Nos ARB/05/18 and ARB/07/15, Award of 3 March 2010) which had stated that it knew: “of no principle why any such third party financing arrangement should be taken into consideration in determining the amount of recovery … of their costs”.

Moldova ratifies the ICSID Convention
On 5 May 2011, Moldova finally deposited an instrument of ratification with the World Bank, having signed the ICSID Convention almost nineteen years earlier, on 12 August 1992. The Convention entered into force in Moldova on 4 June 2011.

Regulatory overhaul makes Indonesian mining less attractive to investors
The rating agency Standard & Poor’s has expressed concern that recent changes to the regulation of Indonesia’s mining sector will make the country less attractive for foreign investment. Likely increases in operating costs, possible delays in awarding mining licenses due to decentralized decision making, and a requirement for domestic processing may change the economics of long-term mining projects, the report said.

Firm News

On 6 May 2011, members of Volterra Fietta attended the 16th Investment Treaty Forum Conference of the British Institute of International and Comparative Law entitled “Is There an Evolving Customary International Law of Investment?” held at the School of Oriental and African Studies in London.

The firm is delighted to announce that Joanna Dingwall joined Volterra Fietta as an associate on 31 May 2011.
On 6th July 2011, Robert Volterra will be delivering a seminar on “International Investment Protection in Asia and the Middle East: Some dos and don’ts” at the Malaysian Corporate Counsel Association (MCCA) in Kuala Lumpur.

On 9th-10th July 2011, Robert Volterra will be attending the annual Asia Pacific Regional Arbitration Conference in Kuala Lumpur and delivering a seminar on “The ICSID Arbitral Process”.

On 12 September 2011, Robert Volterra will be speaking at Liverpool University on the “The Present and Future of the EU Investment Regime”.