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The 2021 Peru presidential election and frontrunner Pedro Castillo's proposals related to foreign investment and international arbitration are examined in this news article by GAR. Counsel Pablo Mori's perspective is included, as he warns "that Castillo's planned mining sector reforms - forcing investors to hand over more of their profits to the government - could result in more arbitrations against the state."

Representing Guatemala, GST LLP applied to annul an ICSID award on the basis of Bulgarian arbitrator Stanimir Alexandrov's alleged failure to disclose ties with an expert witness – a year after Spain successfully annulled an award based on similar allegations. The state also argues there are contradictions in the decision and it violates the res judicata of a previous award issued in the same dispute.

Venezuela triumphs in Dutch Court of Appeals. A US$240 million claim brought by the members of the García Armas family was rejected based on their dual nationality in Manuel Garcia Armas and others v. Venezuela. According to Partner Ignacio Torterola, the judgment confirms that dual nationals bringing claims against their home state “is alien to international law, including investment law.” GST LLP served as counsel to Venezuela, while The Garcías were represented by Freshfields and Dechamps International Law.

Represented by GST LLP, Guatemala has lodged a counterclaim in a US$350 million DR-CAFTA dispute with third-party funded mining investors, seeking damages for alleged misrepresentation and a failure to meet environmental commitments. The state alleges that when obtaining their license, Kappes and KCA (the investors that hold licenses for the gold and silver mining projects) “omitted key information” in their environmental impact assessment (EIA), which did not meet international standards and failed to show the effect the projects would have on local water resources.

GST LLP promotes two international arbitration attorneys to Counsel; Katherine Sanoja, who is a US-UK citizen of Venezuelan heritage, and Peruvian Pablo Mori Bregante. The practitioners have been involved in numerous high-profile investment disputes representing two of GST’s key clients, Venezuela and Pakistan.

The Commercial Court in London has requested further details pertaining to a partial ICC award won by an Australian mining venture against Pakistan as corruption allegations continue to be invoked. Christopher Hancock QC of Twenty Essex chamber appeared on behalf of Balochistan, while GST LLP acted for the provincial government there and as co-counsel for Pakistan.

In response to an announcement by Peruvian officials that they may suspend the collection of toll fees on the country’s roads, an emergency measure in response to Covid-19, Pablo Mori of GST LLP warns that Peru may be in breach of international law. He exhorts states to be cautious, and to “take measures aimed at protecting human life or health,” as long as they are not arbitrary or discriminatory. For example, toll investors in Peru include a subsidiary of France’s Vinci Highways, which is currently bringing a contractual claim against the Metropolitan Municipality of Lima at the International Arbitration Chamber of Paris. Mori draws on his experience navigating the legal fallout from Argentina’s financial crisis, and he notes that many contracts have ICSID clauses, and that this is common in Peru.

Responding to arbitration reforms passed in Peru in light of the continuing corruption scandal of Odebrecht, GST LLP’s Pablo Mori approved the overall aim of increasing transparency for disputes involving State entities, however, he appraised the rulings critically. He pointed to confusing aspects, specifically to the provision that the State cannot be subject to administrative fines, and to the requirement for private parties to pay to secure interim relief.

The dual Venezuelan-Spanish nationality of claimants compelled an UNCITRAL tribunal to decline jurisdiction. GST LLP partners Ignacio Torterola and Diego Gosis noted that the decision, the third rejecting a claim of double nationals is “fundamental”, and that it provides “useful guidance” on obtaining dispute resolution.

Venezuelan opposition leader Juan Guaidó has failed to persuade a US court to stay the enforcement of an ICSID award worth over US$400 million – after the court said it “may take years” to stabilize the country and transition to another political regime. Lawyers from Curtis Mallet-Prevost Colt & Mosle are acting on behalf of Guaidó; Venezuelan President Nicolás Maduro is represented by GST LLP.

Pakistan, represented by GST LLP, negotiates a settlement with a Turkish energy company which will avoid their paying any part of an ICSID award worth US$1 billion.

Pakistan, represented by GST LLP, negotiates a settlement with a Turkish energy company which will avoid their paying any part of an ICSID award worth US$1 billion.

GST LLP will defend Pakistan in an enforcement action against mining company Tethyan. An ICSID tribunal had orginally found that Pakistan unlawfully denied Tethyan a lease to mine copper and gold in Pakistan, but Pakistan alleges bribery and corruption of officials.

A US court in Washington, DC has refused to enforce US shipbuilder Huntington Ingalls US$129 million award against Venezuela’s ministry of defense in a 17-year dispute over a contract to upgrade two missile-armed navy frigates. The Virginia based Huntington Ingalls had previously asked a federal court in Mississippi to retain jurisdiction in the case. GST LLP’s Quinn Smith, representing the ministry, was pleased with the ruling to dismiss.

GST LLP’s Mauricio Gomm Santos served as a witness in an ICC arbitration between Brazil’s VRG Linhas Aéreas and New York-based Matlin Patterson (MP). The dispute relates to a sale agreement signed in 2007, under which a subsidiary of Brazilian budget airline Gol purchased VRG for US$320 million from a Brazilian company called Volo, in which the MP funds had a minority stake. The agreement provided for ICC arbitration seated in São Paulo.

Ignacio Torterola, Argentina’s former ICSID liaison, joins Gomm & Smith, now branded as GST LLP and expanding its practice to Washington, D.C., where Torterola will be based. He joins Argentine colleague Diego Gosis there, and he brings three substantial treaty arbitration cases with him, for which he acts on behalf of Venezuela. Torterola spent nine years at Argentina’s Treasury Attorney General’s Office and five years heading the state’s ICSID office in the Argentine Embassy in Washington.

UNCITRAL declines jurisdiction over an investment treaty claim against Venezuela. GST LLP Partner Ignacio Torterola acknowledges the fairness of the outcome, citing that Clorox España’s transfer of shares is not a protected investment in its Venezuelan subsidiary.

An UNCITRAL tribunal in Geneva has declined jurisdiction over a US $185 million investment treaty against Venezuela brought by a Spanish subsidiary of US cleaning products group Clorox. It found that Clorox España did not have a protected investment under the Spain-Venezueal bilateral investment treaty. GST LLP partner Ignacio Torterola tells GAR: “The tribunal has affirmed the rule in investment arbitration that a transfer of shares without consideration is not a protected investment.”

A US court said “limited” discovery was warranted in support of a pending investigation by anti-corruption authorities in Pakistan. The court ordered Arnold & Porter to answer a number of “basic questions” posed by Pakistan about the material within 30 days. Pakistan sought the material in aid of its efforts to overturn an US$850 million ICSID award issued in 2017 by a tribunal composed of Yves Derains of France, Horacio Grigera Naón of Argentina and David Edward QC of the UK.

Global Arbitration Review 100 reports on GST’s recent activities, which include the defense of Venezuela concerning claims by US shipbuilder Huntington Ingalls, Luis Garcia Armas food distribution business, a Caribbean oil services company and a Spanish agricultural conglomerate. GST is also defending Venezuela by seeking annulments of awards to the US based Koch Brothers and steelmaker Tenaris, while responding to actions by creditors in United States Courts.

At the Institute of Transnational Arbitration’s 30th annual workshop in Dallas, GST LLP’s Diego Gosis opposed Ank Santens of White & Case in a debate on abuse of process. Diego argued that the jurisdiction phase is the appropriate place to dismiss a claim for an abuse of right to prevent double recovery.

Pakistan’s attempts to unseat members of an ICSID tribunal for their conflicts of interest regarding a dispute over mining in Pakistan filed in 2012. Ignacio Torterola of GST LLP in Washington, D.C., counsel for Pakistan, expressed that “Pakistan’s only hope was to have an independent and impartial tribunal in a case as important as this one, in which the future of an underdeveloped part of the world is at stake.”

An ICC tribunal has allowed India’s Jindal Steel & Power company’s claim to proceed against a Bolivian state-owned mining entity while discarding claims against the state itself and another state-owned entity. Ultimately, the tribunal allowed contractual claims against state-owned Empresa Siderúrigica del Mutún (ESM) to proceed, with GST LLP as counsel.

ICSID, in a first-time move, will administer arbitration proceedings not only under its own rules but also under UNCITRAL rules, as well as ad hoc investor-state and state-state proceedings. Venezuela, meanwhile, has applied to annul a US$307 million award over the construction and operation of a fertiliser plant that was issued in October 2017 in favour of Koch Minerals Sarl and Koch Nitrogen International Sarl. Ignacio Torterola of GST LLP in Miami, who is representing the State, tells GAR the grounds for annulment are “intrinsically connected” to the dissenting opinion of an Australian arbitrator which he says “targets the more fundamental tenets of the decisions.”

A tribunal hearing BIT claims against Venezuela has ordered the third-party funded claimants to post US$1.5 million in security for costs – only the second known time such an order has been made in an investment arbitration. In support of this measure, GST LLP Partner Ignacio Torterola representing Venezuela tells GAR: “States should not be perceived as the ones footing the bill in investment arbitration, especially in cases that do not belong before the jurisdiction of international tribunals, as those brought by dual nationals with the dominant nationality of the State party in the dispute. Those cases belong to the municipal law.”

GST LLP’s Diego Gosis represents Bolivia who has agreed to pay US $42.6 million to satisfy an ICSID award in favor of Chilean mining company Quiborax and its Bolivian subsidiary, a significant savings on the original US $151 million sought.

Global Arbitration Review 100 provides an organizational history of GST LLP, originally established by Quinn Smith and Mauricio Gomm Santos in 2009 and currently operating in Miami, New York and Washington, DC. Outlining the arrival of key counsels Diego Gosis and Ignacio Torterola, the article lists State governments, manufacturing firms, mining companies and investment banks that have utilized GST LLP services.

Huntington Ingalls, a subsidiary of US defense contractor Northrop Grumman has won nearly US$129 million in arbitration with Venezuela’s defense ministry over repair and upgrade of naval frigates. Filings and counter-filings have appeared since this dispute began over 15 years ago, amid deteriorating US-Venezuela relations. Quinn Smith of GST LLP, handling the matter in US courts, confirms that the tribunal “accepted some of Huntington’s claims, while rejecting others, and admitted the ministry’s counterclaim.”

Mauricio Gomm dos Santos of GST LLP serves as a council member on the Alliance for Equality and Diversity in Dispute Resolution, a new initiative launched by the recently resigned President of ArbitralWomen. To address the under-representation of women on tribunals as well as the lack of age, ethnic and geographic diversity, the new Alliance will establish an online forum for discussion, maintain a diverse database of practicing arbitrators and will offer regular programs on diversity.

A Bilateral Investment Treaty panel orders Spanish-Venezuelan family Garcia Armas to demonstrate financial solvency should they be required to pay costs in their case against Venezuela. Diego Gosis, partner at GST LLP in Miami and counsel to Venezuela, approves, saying that claimants can no longer enjoy a “free ride” by bringing “speculative” investment treaty claims without risk of liability if they lose.” His colleague Ignacio Torterola agrees, stating “States have the right to protect themselves against frivolous claims and to provide for the expenses incurred in defending those claims.”

Failure to disclose conflicts of interest have led to a bid by Pakistan to disqualify all three members of an ICSID tribunal from hearing a claim brought by Tethyan Copper Company. GST LLP shares that it has documentation indicating that Bulgarian arbitrator Stanimir Alexandrov provided expert services in which a particular cash flow valuation calculation method was used.

An ICSID tribunal rejected a claim brought against Veneuela by an investor in a BMW and MiniCooper import business. Diego Gosis, for Guglielmino & Asociados in Buenos Aires and GST LLP in Miami notes a “…consistent pattern that dismisses claims by fake foreign investors – in this case, a known Venezuelan impresario intending to sue Venezuela under the guise of a Barbadian investor”. He adds that “tribunals have rejected jurisdiction in the last three ICSID cases against Venezuela where awards were issued: Blue Bank, Favianca and now Transban.”

An ICSID tribunal has ruled it has no jurisdiction to hear a bottlemaker’s billion-dollar claim against Venezuela because it was filed after the state gave notice of its denunciation of the ICSID Convention nearly six years ago. Diego Gosis, of Guglielmino & Asociados in Buenos Aires and GST LLP in Miami, comments “We feel that the award reaches a good and solid decision on the issue of the form and effect of denunciation of treaties in general and of the ICSID convention in particular.”

Pakistan has retained GST LLP in its application to annul an ICSID award ordering it to pay $800 million - one of the highest damages sums in the center’s history - for detaining power generation vessels used during a power crisis in Karachi. GST LLP’s Ignacio Torterola reports that the award, in favor of a Turkish company who leased the vessels “is as flawed as it gets,” failing to offer reasons for the damages which include ordering payment of interest relating to a matter occurring two years later.

The sale of an award against Venezuela by glassmaker OIEG to an undisclosed third party is “problematic” according to Diego Gosis of GST LLP. He explains that any conflicts of interest are also unable to be confirmed, and that “article 27 of the ICSID convention states that no contracting state shall provide diplomatic protection to its nationals in relations to ongoing proceedings.”

GST LLP Partners Diego Gosis and Ignacio Torterola welcome the enforcement of security costs to protect against frivolous claims appearing before tribunals after two investment treaty cases against Venezuela were ordered to prove they have sufficient assets to pay costs if they lose. The García Armas family are pursuing UNCITRAL and ICSID under the Spain-Venezuela BIT over the expropriation of their food distribution businesses.

Relative to a multibillion-dollar mining rights claim over a valuation process in which Pakistan has requested disqualification by a Bulgarian arbitrator, GST LLP Partner Diego Gosis explains Pakistan’s concerns that the arbitrator refused to disclose “outrageous conflicts of interests.” A particular “modern” discounted cash-flow analysis has been applied which predicts inflated damages.

As an ICSID claim moves to the damages phase, Pakistan has applied to disqualify a Bulgarian arbitrator because the claimants are relying on a rare valuation method involved in another case where the arbitrator is acting as counsel. Diego Gosis, a partner at GST LLP in Miami, states that “The thrust of Pakistan’s concern lies with the stance adopted by the arbitrator – that he felt no disclosures were necessary even in the face of outrageous conflicts of interests.”

A tribunal acknowledges a “factual error” regarding the status of litigation under the Dominican Republic-Central America Free Trade Agreement in a dispute brought by American party Berkowitz against Costa Rican expropriation of real estate there. Unknown to the tribunal, the Costa Rican courts had in fact ruled in the case, ordering that the Berkowitzes be compensated up to an amount far exceeding the state’s offer. But the State has attempted to appeal the decision in a way the family says continues the alleged breach of DR-CAFTA. Diego Gosis of GST LLP, on behalf of the Berkowitz family, asserts that the arbitration should be discontinued.

GST LLP partner Quinn Smith took part in the ICC Young Arbitrators Forums North America regional conference. There he discussed a case before the Second Circuit Court of Appeals regarding the enforcement of a US $465 million ICC award rendered against Mexican state oil and gas company Pemex in favour of Commisa, a subsidiary of US engineering company KBR. Smith argued that there existed no specific applicable case law in Mexico and that US courts should not second guess the courts of Mexico.

GST LLP makes the Global Arbitration Review GAR100 list of reputable international arbitration firms, ranking it globally among firms that tackle serious international arbitration matters before credible arbitrators.

Quinn Smith of GST LLP is named to the committee of the ICC International Court of Arbitration’s Young Arbitrators Forum. Charged with promoting ICC YAF conferences and events around the world, this diverse international committee will expose young lawyers to current issues in arbitration.

Quinn Smith of Gomm and Smith, now GST LLP, is appointed to the global advisory board of the International Centre for Dispute Resolution’s (ICDR) under-40 group, composed of twenty-one practitioners from sixteen countries.

Global Arbitration Review reports that boutique Miami firm Smith International Legal, now GST LLP, has hired Argentine lawyer Diego Gosis to advise on commercial and investment arbitration. Gosis believes Miami will soon be a hub for investor-state arbitration. He says “Many of the pending investor-state claims relate to Latin America, and both investor and state parties have close business and social connections in Miami,” he explains. “The local practitioners also have the sophistication and skills to deal with such cases.” Mauricio Gomm dos Santos enthuses “Diego brings a great skillset to our office. Not only is he intelligent and talented but he has a breadth of experience that is without parity in the market.”

Quinn Smith will chair a new Young Arbitrators group that has launched in Miami named Future Arbitration of Miami (FAM).

Quinn Smith of Smith International Legal Consultants in Miami (now GST LLP) expressed pleasure with the result of arbitration regarding construction and delivery of a power plant by US engineer Bechtel to Brazil. He stated that his clients, Brazilian power associations “rely on complex, turn-key contracts with similar provisions across the sector. Defining ’substantial completion’ to include mechanical completion and final testing gives certainty to the power producers and fulfils the intentions of the contract.”

Quinn Smith and Mauricio Gomm dos Santos, GST LLP partners, faced each other across the football field, in a friendly game among arbitrators. Brazil v. the World took place at the 2010 ICCA conference in Rio de Janeiro.

A Carnival Cruise employee’s slip on a wet floor while working moved from Miami court to the Philippines under Panamanian law, due to an arbitration clause in his employment contract. Mauricio Gomm dos Santos and Quinn Smith of Smith International Legal Services (now GST LLP), wrote that “arguably, if the choice of law deprives a party of a federal claim, then the mere existence of the claim may create a non-arbitrable issue as a matter of public policy.” In this case, the Eleventh Circuit Court found that an arbitration clause in a contract between a seaman and a cruise ship couldn’t be applied, because its choice of a foreign seat and a foreign governing law would deprive the individual of a US statutory right. It was also found that the employee had recently signed a new contract without an arbitration clause.

Mauricio Gomm dos Santos of Brazil and Quinn Smith of Miami join forces in 2009 to become Smith International Legal Services (now GST LLP), a new boutique law firm in Miami’s active international trade environment. Gomm dos Santos, 48, and Smith, 27, will serve the Brazilian community in Miami as the level of Brazilian investment in the US is increasing. “Commercial arbitrations featuring public concessions and Brazilian state-owned companies are also becoming more common,” says Gomm dos Santos.