Arbitration in the International Energy Industry
This title provides a practical, user-friendly overview of the essentials of international arbitration in the energy industry.
These are just some of the issues covered by this title, which provides a practical, user-friendly overview of the essentials of international arbitration in the energy industry. Leading practitioners from international law firms and global companies consider, among other things, the effective drafting of arbitration clauses, how to keep international arbitration affordable, gas price arbitrations, EPC and construction arbitrations, investment treaty disputes under the Energy Charter Treaty, third party funding in international arbitration and enforcement of arbitral awards.
Edited by Ronnie King, Tokyo Managing Partner and international arbitration expert at international law firm Ashurst LLP, this title will be of practical value for all lawyers advising in the energy industry, and for others who have an interest in the important issues discussed.
Table of Contents
|Table of Contents||3|
|Effective arbitration clauses||9|
|Time and cost efficiency||23|
|Alternative dispute resolution||37|
|Practical tips from an in-house lawyer’s perspective||63|
|The 2017 AIPN Model Dispute Resolution Agreement||75|
|Oil and gas arbitrations in the Middle East and North Africa||93|
|Gas pricing disputes||113|
|EPC and construction disputes||125|
|Joint venture disputes||139|
|LNG plant disputes||165|
|The Energy Charter Treaty||177|
|The role of expert evidence in energy arbitrations||199|
|Arbitrating competition law claims in the energy sector||217|
|Dispute funding and the energy sector||245|
|Enforcement of awards||261|
|About the authors||279|
Partner, Fox Williams LLP
Peter Ashford is a partner in the litigation and dispute resolution department and head of international arbitration at Fox Williams LLP. He is a fellow of the Chartered Institute of Arbitrators and the author of the Handbook on International Commercial Arbitration published by Juris Publishing of New York in 2014. He has also written a guide to the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration and a guide to the IBA Guidelines on Party Representation in International Arbitration, both published by Cambridge University Press in 2013 and 2016 respectively. He is working on a companion guide to the IBA Guidelines on Conflicts.
Mr Ashford has been appointed by the London Court of International Arbitration (LCIA) and the president of the Law Society as arbitrator, and is also recognised in the third edition of Best Lawyers in the United Kingdom for Litigation. He has been recommended and listed by Chambers and Legal 500 for many years.
Partner, Kirkland & Ellis International LLP
Rajinder Bassi co-founded and is a partner in the international arbitration and litigation group in the London office of Kirkland & Ellis International LLP. She has represented multinational corporations, government entities and high-profile individuals in highstakes international arbitrations and litigations around the world. These cases have involved a wide range of complex subject matter, applicable laws and venues, and have covered many industry sectors, including telecoms, energy, pharmaceuticals and financial services. Ms Bassi also serves as an arbitrator. She is listed as a leading international arbitration lawyer in Chambers UK 2018, where she is described as “excellent, very client focused and really gets her hands dirty in a case”; and in Legal 500 2017, where she is described as a “superb tactician and tough negotiator”.
Regional counsel, Southeast Asia, Ophir
Rachael Bewsey has more than 18 years’ experience in oil and gas law, having joined Premier Oil plc in 2000 and more recently Ophir Energy plc in July 2018. She qualified as a solicitor in 1996 at Simmons & Simmons and worked in Hong Kong, London, Abu Dhabi and New York. She was first listed in Legal 500 in 2007. Based in London for more than 10 years, she relocated to Singapore in 2011 to become regional counsel. There, she headed up all M&A activity for Premier Oil in Asia, managed all legal and compliance issues for over one-third of Premier Oil’s total production, and was responsible for recruiting and managing national legal teams in Vietnam and Indonesia. Ms Bewsey has extensive experience negotiating with foreign governments and regulators and senior management in other oil companies and private equity negotiating production sharing contracts with various governments and state regulators; international and domestic gas sales agreements; and managing disputes.
Senior associate, Ashurst
Luke Carbon is a senior associate in the dispute resolution group at Ashurst Australia. He specialises in the resolution of disputes in the energy, resources, construction and infrastructure sectors. He provides advice and representation in respect of domestic and international litigation, international commercial arbitration and alternative dispute resolution. Mr Carbon has particular experience in the resolution of international disputes. His experience includes disputes across the Asia-Pacific region, Africa, the Americas and Europe.
Partner, Ashurst LLP
Neil Cuninghame is a partner in the competition and EU law group in Ashurst LLP’s London office. For more than 20 years, he has specialised in providing advice on all aspects of EU and UK competition law. This includes advising on EU, UK and other merger control regimes, acting for clients in relation to alleged anti-competitive practices and agreements before the European Commission, the UK Competition and Markets Authority and other regulators, and advising on competition disputes (including those resolved through arbitration), market investigations, competition law compliance and state aid issues.
Mr Cuninghame also advises on regulatory issues in the energy sector, including price control regimes, and unbundling and third-party access obligations.
Mr Cuninghame advises clients across a wide range of industries, including energy and resources, infrastructure, metals and mining, financial services, media and property services.
Investment manager, IMF Bentham Ltd
Oliver Gayner is an investment manager at international litigation funding group IMF Bentham in Sydney, and head of the company’s Europe, Middle East and Africa (EMEA) office in London. Mr Gayner investigates, finances and manages litigation and arbitration cases in various jurisdictions including Australia, the United Kingdom, Hong Kong and Singapore.
While in private practice, Mr Gayner was a solicitor at Freshfields Bruckhaus Deringer and Olswang in London, specialising in dispute resolution across a variety of industries, including banking and finance, energy, telecoms, media and IT. He has degrees in English and law and is a frequent author on issues relating to law, economics and civil justice.
Partner, Mishcon de Reya LLP
Ben Giaretta is a partner at Mishcon de Reya LLP. He is a solicitor advocate, a chartered arbitrator and a fellow of the Chartered Institute of Arbitrators. Educated at Oxford University and Queen Mary University of London, from which he has a diploma in arbitration, he is also a fellow of the Singapore Institute of Arbitrators. He represents clients on international arbitrations throughout the world, particularly in the energy, projects and construction sectors. He has extensive experience of working on liquefied natural gas (LNG) disputes, including pricing, production, LNG sale and purchase agreements, joint ventures and shipping disputes. In addition, he is frequently appointed as arbitrator, having served as sole arbitrator, party-nominated arbitrator, presiding arbitrator and emergency arbitrator, under the rules of many institutions. Now based in London, he was previously based in Singapore and has worked for clients throughout Asia, as well as in Europe and Africa.
Chief investment officer (Asia), IMF Bentham Ltd
As chief investment officer (Asia), Tom Glasgow leads IMF Bentham’s regional investment activity and business expansion in Asia. He is responsible for assessing and managing IMF Bentham’s portfolio of funded cases throughout the region, including international commercial and investment treaty arbitrations involving Asian parties. Prior to joining IMF Bentham, Mr Glasgow was a senior member of Allen & Overy’s international arbitration and disputes practice in Asia, where he handled complex multijurisdictional commercial matters for leading global businesses across a range of sectors. He holds dual degrees in law and international relations, and is a qualified lawyer in both New Zealand and Hong Kong. He has a strong interest in international disputes, litigation finance and the development of legal services. He frequently speaks and publishes on these topics.
Director, KPMG LLP
Adrian Howick is a director in the dispute analysis services practice of KPMG in London. He holds degrees in commerce and law, and a graduate diploma in applied finance and investment.
Mr Howick has specialised in forensic accounting for the last 20 years, principally on accounting disputes and the quantification of loss and damage. He provides an expert assessment of the loss of profits and the value of businesses and shares for claims relating to breaches of tort and contract and the expropriation of assets, as well as in shareholder, partnership, infrastructure and construction disputes, including those involving the oil and gas industry. He has also worked on insolvency and restructuring assignments in the UK, Europe and Australia. Mr Howick has been appointed as an independent expert witness, and given testimony, in disputes in the UK High Court and in London-seated arbitrations. He has led many expert engagements involving both court proceedings (in the United Kingdom, Ireland and Australia) and arbitrations (under the International Centre for the Settlement of Investment Disputes (ICSID), International Chamber of Commerce (ICC), LCIA, Singapore International Arbitration Centre (SIAC) and United Nations Commission on International Trade Law (UNCITRAL) rules).
M Imad Khan
Senior associate, Hogan Lovells
Imad Khan is a senior associate in Hogan Lovells’ international arbitration and international law practice groups. He represents and advises companies across diverse economic sectors, including energy, oil and gas, electricity, renewables and mining in international treaty and commercial arbitrations. Mr Khan has represented both foreign investors and host states in investment disputes before the International Centre for the Settlement of Investment Disputes at the World Bank, well as under the rules of the United Nations Commission on International Trade Law. He also represents clients in construction and commercial arbitrations under the rules of the International Chamber of Commerce, the International Centre for Dispute Resolution (ICDR) and the Hong Kong International Arbitration Centre.
Mr Khan currently teaches courses in international law and arbitration at Washington University School of Law in St Louis, and previously taught courses in international law at the University of Houston Law Center. He is currently serving as a Global Advisory Board member of the ICDR Young & International group.
Managing partner Tokyo, Ashurst LLP
Ronnie King is the managing partner of Ashurst Tokyo. Ronnie graduated from Cambridge University (MA, LLM), prior to joining Ashurst in 1984. He has acted on energy sector disputes for over 25 years, including on some of the highest value sector disputes in the market, and was one of the first law firm partners in London to identify energy sector dispute resolution as a separate discipline. His client mandates include Centrica, Total, Tullow, E.ON, National Oil Company (Libya), Kuwait Petroleum and Hess Corporation in work that spans many of the types of dispute covered in this text. Mr King represents clients as counsel in arbitrations and sits as an arbitrator. He has been ranked consistently in independent commentaries as a legal expert in relation to energy disputes. He has had the privilege of working with, or opposite, most of the contributors of this book, each of whom has genuine expertise in the subjects which they address.
Investment manager, IMF Bentham Ltd
Nathan Landis is an investment manager based in the Perth office of IMF Bentham. He joined IMF Bentham from the Western Australia Bar, where his practice focused on the energy and resources sector. While at the Bar, he advised on a number of disputes involving energy projects. Prior to joining the Bar, he was a counsel in the litigation and dispute resolution department at Clifford Chance, where he was also part of the firm’s global oil and gas industry group. He has worked in the Middle East and with a top-tier law firm in Australia. During his career, Mr Landis has appeared in a range of courts and tribunals within Australia and the Middle East. He is a member of the Chartered Institute of Arbitrators. In 2015 he was recognised by Doyle’s Guide as a recommended barrister for Dispute Resolution in Western Australia.
Associate, Ashurst LLP
Ghislaine Lawless is an associate at Ashurst LLP specialising in international commercial arbitration, with a particular focus on the energy and resources sector. She has experience of both ad hoc and institutional arbitration, including pursuant to the LCIA and UNCITRAL rules. Ms Lawless has acted for a variety of clients in the energy, defence, finance and resources sectors, as well as for large corporates, and has a particular interest in African disputes. A keen linguist, she speaks Italian and French and continues to do battle with Mandarin following her completion of a postgraduate diploma at Shanghai Normal University.
Partner, Freshfields Bruckhaus Deringer
An experienced international arbitration counsel and advocate, Nicholas Lingard heads Freshfields’ international arbitration practice in Asia. He has a particular focus on oil and gas and politically delicate negotiations in the energy sector, and leads probably the most active treaty arbitration practice in Asia. He also represents clients in commercial disputes across a variety of industries, under all the major arbitral rules and under all major systems of law.
Mr Lingard is an expert member of the Energy Charter Treaty Secretariat’s Legal Advisory Task Force. He is co-author of the leading Japanese practice text on international arbitration and A Guide to the SIAC Arbitration Rules (2nd ed, Oxford University Press, 2017). Mr Lingard was educated at the University of Queensland and Harvard Law School. He is admitted to practise in New York and New South Wales, Australia. He is also a registered foreign lawyer at the Singapore International Commercial Court.
Associate, Ashurst LLP
James MacDonald is an associate in Ashurst’s dispute resolution team based in Dubai. He has acted in a number of large and complex commercial disputes, and regularly advises clients on drafting effective arbitration clauses and on the enforcement of arbitration awards. Mr MacDonald has experience acting for clients in a range of industries, including energy, resources and construction in the Middle East and globally. His experience advising clients in the energy sector includes advising on both contractual and regulatory issues.
Managing director, Northumberland Chambers
Tim Martin has more than 40 years’ experience in the international oil and gas industry where he has been general counsel, country manager, finance director, commercial manager, corporate director and petroleum economist, working in more than 50 countries. He has been president of the Association of International Petroleum Negotiators and other industry organisations.
Tim’s peers have selected him as one of the leading International Who’s Who of Oil & Gas Lawyers and Commercial Arbitrators, where he has been described as the “best around for energy disputes”, as “a true expert in the [oil & gas] sector” and as a “true innovator” in international oil and gas law. Mr Martin has extensive experience as an arbitrator, counsel and expert in international arbitration, transborder litigation and boundary disputes. He has provided advice on some of the largest energy and infrastructure projects in the world.
Mr Martin is a fellow and chartered arbitrator of the Chartered Institute of Arbitrators, a council member of the AAA, and a member of the LCIA, IAI and Energy Arbitrators List. He is also on the arbitrator panels of the ICDR, SIAC, KLRAC, SCCA and BCDR. More information can be found on Tim’s website: www.timmartin.ca.
Associate, Ashurst LLP
Patrese McVeigh is an associate in Ashurst’s dispute resolution team based in Singapore. She has experience in dispute resolution and international arbitration, with a particular focus on high-value disputes in the construction, resources and energy sectors. Her work includes advising corporations on complex commercial disputes and assisting clients through the dispute resolution processes.
Partner, Kirkland & Ellis International LLP
Jon Newman is a partner in the international arbitration and litigation group in the London office of Kirkland & Ellis International LLP. He has represented numerous multinational corporations, financial institutions and highnet- worth individuals in international commercial arbitrations, including under the ICC, LCIA, Hong Kong International Arbitration Centre, SIAC and UNCITRAL rules. He has also represented multinational corporations and financial institutions in complex litigations in the English courts, and in international internal and regulatory investigations. Such cases have involved various business sectors, including financial services, telecoms, healthcare, real estate, heavy industry and consumer goods.
Partner, Ashurst LLP
Dyfan Owen is a partner at Ashurst and leads the Middle East dispute resolution team. He specialises in complex disputes arising out of the infrastructure, energy and resources sectors, and has advised on a number of multimillion-dollar disputes in these sectors for clients in the Middle East and globally. In addition to acting for clients in international arbitration, Mr Owen is well versed in other forms of dispute resolution, including expert determination, adjudication and mediation. Recent matters on which he has acted include disputes and international arbitration relating to the operation of a power plant in the United Arab Emirates, the construction of an airport in a Gulf Cooperation Council state, the construction of telecommunications infrastructure in Saudi Arabia, investments in renewable energy projects in Egypt and a dispute relating to a landmark downstream oil and gas project.
Partner, Ashurst LLP
Rob Palmer is a partner in Ashurst’s dispute resolution team in Singapore and managing partner of Ashurst’s Singapore office. He has a particular focus on dispute resolution in international energy, construction and infrastructure projects.
Mr Palmer has been based in Southeast Asia since 2003 and during that time has conducted arbitrations under the rules of all major regional and international arbitral institutions including the SIAC, AAA, ICC, LCIA, KLRCA, TAI and BANI. He also sits as arbitrator, and is a panel member of the ACICA, KLRCA, TAC and BANI, as well as having been appointed by the SIAC. Mr Palmer is admitted to practise in England, New South Wales (Australia) and New Zealand and is a registered foreign lawyer at the Singapore International Commercial Court.
Georgia Quick is a partner in the litigation and dispute resolution group at Ashurst Australia in Sydney. She specialises in dispute resolution and risk management in the areas of energy, construction and major projects and is joint head of the Australian international arbitration practice. She is dual qualified (Australia and the United Kingdom, having practised international arbitration in London for seven years). She was named as the Alternative Dispute Resolution Practitioner of the Year at the 2017 Australian Alternative Dispute Resolution Awards.
Partner, Ashurst LLP
Matthew Saunders is a partner in the dispute resolution practice in London. He focuses on international arbitration relating to international projects and the energy and resources sectors and leads the global international arbitration practice at Ashurst. Mr Saunders has a particular focus on disputes in the gas sector including pricing and supply issues in both natural gas and LNG sectors. He also has particular experience of treaty claims involving bilateral investment treaties and the Energy Charter and Energy Community treaties. He is a member of the London Court of International Arbitration, the Chartered Institute of Arbitrators and the Association of International Petroleum Negotiators. His practice covers both contract and investment treaty arbitration.
Partner, Hogan Lovells
Jennifer Smith, a partner at Hogan Lovells in Houston, has significant experience in international dispute resolution. A recognised leader in her field, she has advocated for companies involved in complex international commercial disputes for more than 25 years. Dual-qualified in England and Texas, she is well versed in the business and cultural realities of cross-border disputes and has a deep understanding of almost every facet of the energy industry. Ms Smith advises corporations on disputes concerning a wide range of issues, from those involving drilling rigs, reservoir management, LNG, production sharing agreements and floating production storage and offloading facilities to issues of corporate governance and joint ventures.
Ms Smith serves on the executive committee of the Institute of Transnational Arbitration, on the international advisory committee of the ICDR, on the advisory council of the Kay Bailey Hutchison Centre for Energy, Law and Business, on the executive committee of the World Affairs Council of Houston and as a trustee of Wellesley College.
Thomas K Sprange QC
Partner, King & Spalding International LLP
Thomas K Sprange QC is partner in King & Spalding’s trial and global disputes group based in London, England. He provides advocacy and strategic advice in significant high-value and complex commercial disputes, in particular in the energy sector. He has acted as lead counsel in more than 100 international arbitrations in the leading arbitration institutes, including the ICC, LCIA, AAA, SCC and ICSID. He also regularly sits in threemember arbitration tribunals and as a sole arbitrator. He is ranked in the latest editions of Chambers Global, Chambers UK, Chambers Europe, Legal 500 UK and Who’s Who of Commercial Arbitration, Asset Recovery and Construction directories for Arbitration and Dispute Resolution.
Associate, Freshfields Bruckhaus Deringer
Emily Stennett is an associate in Freshfields’ dispute resolution group, with a focus on commercial disputes and international arbitration.
Ms Stennett advises clients across various sectors on a broad range of complex, highvalue commercial disputes, both in the English courts and in arbitration proceedings under all major institutional rules and systems of law. She regularly advises clients in the oil and gas and construction sectors, and has also represented both investors and states in a number of high-profile investment treaty arbitrations in Asia and around the world. Ms Stennett studied at Cambridge University and graduated in 2011 with a BA in law. She is qualified as a solicitor-advocate in England and Wales.
Associate, Ashurst LLP
Max Strasberg is an associate in the dispute resolution depar tment in Ashurst LLP’s London office. He has advised clients on a wide range of contentious matters before the High Court and Competition Appeal Tribunal. His experience includes investigations by competition authorities, competition damages actions (including follow-on and collective actions), public procurement disputes (including judicial review), as well as oil and gas and general commercial disputes and arbitration. Mr Strasberg was recently recognised in Legal 500 UK as a recommended practitioner in competition litigation.
Ben J Williams
Senior associate, King & Spalding
Ben Williams is a solicitor-advocate in England and Wales and an attorney and counsellor at law in New York state. He is a member of King & Spalding’s trial and global disputes group based in London, England. With more than a decade of experience handling and resolving complex commercial disputes, he focuses his practice on the energy sector and frequently represents clients in national courts and international arbitrations, including in proceedings brought under the Energy Charter Treaty.