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[neo26] 01/8/2016 23:33

this is a few years old but you can tell roi are hurting, this case is reducing foreign investment big time, some in Indonesia actually want to get this case out of the way it seems....

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hxxp://www.iareporter.com/articles/20130312_1
ARBITRATORS DENY INDONESIA’S REQUESTS FOR RESTRAINTS TO BE PLACED ON INVESTOR’S PUBLIC COMMENTS AND “LOBBYING̶1; EFFORTS
publication date: Mar 12, 2013 Print Send a summary of this page to someone via email.
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By Luke Eric Peterson

An arbitral tribunal at the International Centre for Settlement of Investment Disputes (ICSID) has rejected a pair of requests by the Republic of Indonesia for provisional measures in a pending dispute with UK mining company Churchill Mining PLC.

Indonesia had urged the tribunal to order Churchill to “refrain from making false, unfounded and misleading statements in the media regarding the (ICSID) case” and to order Churchill to refrain from doing an end-run around Indonesia’s representatives in the ICSID arbitration in order to lobby other government officials in an effort to bring about a settlement of the dispute.

However, in a procedural order dated March 4, 2013, the tribunal of Gabrielle Kaufmann-Kohler, Michael Hwang and Albert Jan van den Berg rejected both requests on the basis that neither involved “rights in dispute” that could justify the ordering of provisional measures.*

With respect to the first request, Indonesia had complained that a series of false or misleading statements by the claimant was endangering the country’s reputation with foreign investors, as well as related rights to play host to and regulate investments in its territory. The claimant countered that its statements were not false, and, in any case, did not transgress “the bounds of appropriate comment in ICSID proceedings”. Churchill also questioned whether the “rights” at the heart of Indonesia’s request were the type to which provisional measures might be applicable.

In considering the first request, the tribunal recalled that there is no general duty of confidentiality in ICSID proceedings, but that the parties “are bound by a good faith duty not to exacerbate the dispute or affect the integrity of the arbitration proceedings.” On the facts before it, the tribunal saw nothing that violated this duty of good faith. Indeed, the tribunal agreed with Churchill that “it is permissible for a party in ICSID proceedings to state its case in public in general terms.”

More fatal to Churchill’s request was the tribunal’s holding that the rights to be preserved need to bear a relation to the ICSID dispute. Indeed, the tribunal nodded to a much-earlier (and also unsuccessful) attempt by Indonesia to restrain a different claimant from speaking publicly about an ongoing ICSID arbitration. In that earlier case, Amco Asia v. Indonesia, arbitrators had held that negative publicity might have a negative effect on Indonesia’s economy, but that this did not mean that it had affected the rights in dispute in the ICSID arbitration.

Similarly, on the facts of the Churchill case, the various rights cited by Indonesia are not the type that could warrant protection via the use of provisional measures.

Trial by the media not tied to availability of arbitration documents?

Because Indonesia adverted to a series of “rights” that were not intrinsic to the arbitration, its request for provisional measures can be contrasted with other cases where tribunals have acted in an effort to defend a party’s right to the procedural integrity of arbitration proceedings or to non-aggravation of a dispute.

However, the Churchill case is also distinctive for another reason: the parties have agreed that it will be conducted with a high degree of transparency. While not dwelled upon in the tribunal’s March 4, 2013 procedural order, the parties agreed at the outset of the case that all pleadings and tribunal decisions and orders will be released on the ICSID website as the case unfolds.

As such, Indonesia’s effort to limit certain forms of outside discussion of the arbitration appear to take for granted that the mere publication of arbitration-documents is neither problematic, nor a useful lever for affecting such outside discussion.

Indeed, provisional measures orders in earlier ICSID cases have attracted criticism for the very reason that they seem to view transparency of the arbitral process as a potential catalyst for so-called “trial by media” or inflammatory public statements by a party. However, the Churchill case, and indeed the legacy of earlier ICSID cases subjected to confidentiality orders (including Biwater v. Tanzania among others), seems to point to a different reality – with harsh public or media commentary not seemingly dependent upon the availability or otherwise of arbitration materials related to the given case.

Second request by Indonesia rejected swiftly

Indonesia’s second request sought to bar the claimant from reaching out to other agencies and officials in an effort to bring pressure on Indonesia to settle the dispute with Churchill. In particular, Indonesia sought an order that would instruct the claimant to refrain from approaching or lobbying officials other than the “authorized representatives̶1; handling the arbitral defence for Indonesia, and to refrain from “divide and conquer” tactics.

For the tribunal, the statements by Churchill officials that they would continue “lobbying̶1; – which had begun prior to the initiation of arbitration – and some outreach by the claimant to other Indonesian agencies was not enough to qualify as “wrongful conduct”. More generally, the tribunal stressed that the ICSID framework recognizes the right of parties to engage in settlement negotiations, and does not place any bar upon such efforts.

As in relation to Indonesia’s other request, there was no “right” here that would justify provisional measures.


* For the sake of completeness, the tribunal also confirmed that Indonesia’s twin requests had not met other tests - necessity and urgency - typically set by ICSID tribunals in relation to requests for provisional measures
Investment Arbitration Reporter is a specialized news publication tracking developments in the area of international investment law and policy.

The publication does not offer legal or financial advice or recommendations of any kind.

To offer news-tips or comments, email the Editor, Luke Eric Peterson, at: [e-mail]

[neo26] 01/8/2016 21:39

shaun

got a c next to it, cancelled trade..

[stephen1946] 01/8/2016 20:56

Shaun, to soon methinks.

[mrshaungcm] 01/8/2016 19:59

dump
01-Aug-1611:07:5123.5556150,000Sell* 24.0024.5035.33k

[top_banana1] 01/8/2016 19:10

keep an eye on cumulative vol folks

[neo26] 01/8/2016 17:39

WulberEven if that's the worse case, money talks. Roi admit that chl have not committed fraud against Indonesia it is their previous partners Ridlatama. Chl can still claim money under invested "in good faith". Obviously they can't expect to claim the $1.3 billion then... Chl will get paid, certainly more than the current MKT cap..

[theorb] 01/8/2016 17:15

Stephen.

I am also one of those who feels there is a 50/50 chance talks are happening? All the questions have been asked and the answers given, except by Noor of course. If they are still deliberating,how can they say the decision will be in 3 months if there are still ongoing arguments?

[wulber] 01/8/2016 16:18

Neo, unfortunately many do feel that way.When dealing with corrupt states, brown paper envelopes full of cash are a way of the world.Anyway sitting tight with my holding and see what happens.

[masarap] 01/8/2016 16:08

At the time the BBC report confirmed that "Two-thirds of Indonesia's parliament are from Mr Subianto's (Prabowo's) coalition."

I think the balance has changed and if Jokowi now has a majority in parliament without Prabowo then he no longer needs to 'go easy' on him and Jokowi could settle. Conveniently and quite rightly he can point the finger of blame elsewhere.

[stephen1946] 01/8/2016 16:08

"Wild speculation about settlement" dont be ridiculous, CHL holders have been placated with talk about arbitors, "deliberating for 3 months" that is the "wild fanciful speculation"

Deliberate for 3 months? About what? The brand of tea we should be drinking? What we did over the weekend?

How do you justify the huge fees being paid if you are just deliberating? And not investigating the minute details.

The parties will have informed the tribunal that talks are taking place and to that end the tribunal issued what amounts to "a holding statement"

[masarap] 01/8/2016 15:59

After he lost the election Prabowo threw his toys out the plan and made all sorts of unpleasant threats to rock the boat. Then he met Jokowi as pictured above with subservient grovelling and forced smiles. I hope Widodo made no promises in relation to Prabowo's business interests and the CHL case. There's no reason to think that he did but clearly something changed for Prabowo to switch from Rottweiler to Poodle.

If Widodo wants to go easy on Prabowo then it's arguable that a behind the scenes negotiated settlement is better than awaiting ICSID judgement. I don't think either the perpetrators or those trying to attract inward investment would want a third party public domain decision that (I hope and believe) exposes Noor and, by association, Prabowo as playing dirty tricks on internatonal investors.

Alternatively, as long as Jokowi has not made any behind the scenes agreement with Prabowo, then settling the CHL affair and pin pointing the 'rogues' as Prabowo allie, provides an opportunity to damage someone who could still be a political opponent in the next election.

[neo26] 01/8/2016 15:58

Wulber

Oxs was different, no one is saying this is dead cert...

[neo26] 01/8/2016 15:47

The old president at the time of chl putting their claim in with icsid said to his ministers "prepare for the worst". That was in 2012...

[wulber] 01/8/2016 15:43

Calm down peeps, its only up 0.5p today and it could slip back at the close.Far too early to start making wild speculation about out of court settlements before Sept and in no way is this a dead cert, done and dusted deal.That's what OXUS holders thought!Patience and only use money here you can afford to lose.

[neo26] 01/8/2016 15:30

Yea but this weasel will not be going jail, ain't they trying to out a bill through which will not jail corrupt officials...

[debbiegee] 01/8/2016 15:28

How long can Prawabo protect him ?
I reckon when the time comes he will drop him like a hot stone or will he also be reeled in ?
Jokowi won in a kind of hung parliament situation with Prawabo and his cronies blocking the changes he wanted to make

[neo26] 01/8/2016 15:03

I want this weasel Isran Noor named and shamed...

He talked the talk but couldnt walk the walk...

[debbiegee] 01/8/2016 14:14

Had it of closed on todays high it would have been the highest for 3 months.
So a good and significant breakout !