The Estate of Julio Miguel Orlandini-Agreda, Compañía Minera Orlandini Ltda. v. The Plurinational State of Bolivia

At a glance

Parties

The Estate of Julio Miguel Orlandini-Agreda and Compañía Minera Orlandini Ltda. (CMO) v. the Plurinational State of Bolivia

Case no.

PCA Case No. 2018-39

Forum and rules

UNCITRAL Arbitration Rules (2010, with 2013 art. 1(4)), administered by the PCA; seat Paris, France

Treaty

United States–Bolivia BIT, signed 17 April 1998, in force 6 June 2001

Tribunal

Dr. Stanimir A. Alexandrov (Presiding Arbitrator), Prof. Dr. Guido Santiago Tawil, Dr. José Antonio Moreno Rodríguez

Sector

Mining (mining concessions)

Outcome

Only procedural decisions are published. Bolivia's requests for termination, suspension, trifurcation and security for costs were refused. The claimants' request for a partial award on advance costs was also refused. The published documents do not include the award on jurisdiction and liability or any final award.

Amount

Bolivia sought security for costs of at least USD 4 million (2019), and later at least USD 5 million (2021). Both requests were refused. The claimants sought a partial award ordering Bolivia to repay USD 450,000 they had paid in its place towards the advance on costs; the request was refused. The amount of the merits claim is not stated in the published documents.

The dispute

Julio Miguel Orlandini-Agreda and his company CMO started the arbitration on 31 January 2018. The claims concern two mining concessions over the Antequera River (Veneros San Juan and Pretoria) and 46 concessions at Mina Totoral. The claimants said Bolivia expropriated the concessions and related property, in breach of the Treaty, international law and Bolivian law. They blamed the concerted action of the departmental mining authority, the mining registry (SERGEOTECMIN), the Bolivian courts in the labour case known as the Martínez Case, and the State mining company COMIBOL, which allegedly acted to favour COMIBOL and its joint-venture partners. Mr. Orlandini died on 1 January 2019, and his estate continued the claim. Bolivia objected to jurisdiction on four grounds: (i) Mr. Orlandini was a dual US–Bolivian national whose dominant nationality was Bolivian (the ratione personae objection); (ii) there was no covered investment in the Antequera concessions; (iii) no investment had been proved; and (iv) the conduct in the Martínez Case was not a prima facie denial of justice. On the merits, Bolivia denied any breach and argued that CMO had failed to use the remedies available to it under Bolivian law.

Key holdings

1. Bolivia asked the Tribunal to end the case under Article 36(2) of the UNCITRAL Rules for manifest lack of jurisdiction. The request was refused: the lack of jurisdiction was not evident or plain on its face, and due process required full briefing on the objections. The alternative request to suspend the case until the Miami-Dade probate court closed the estate was also refused, because it could leave the claimants in legal limbo. Decision of 9 July 2019, ¶¶ 114–125
2. Trifurcation refused. The jurisdictional objections were intertwined with liability, for example a possible inquiry into Mr. Orlandini's dominant and effective nationality. Jurisdiction and liability would therefore be heard together, followed if necessary by a separate phase on damages, as the parties had agreed. Decision of 9 July 2019, ¶¶ 131–139, 152
3. Security for costs refused. The claimants had paid their share of the advance on costs and had not acted abusively or in bad faith. Financial distress alone is not a sufficient basis for security, and Bolivia showed no urgency. The Tribunal distinguished Manuel García Armas v. Venezuela. Decision of 9 July 2019, ¶¶ 143–151
4. Bolivia asked to suspend its deadline for the Statement of Defense on grounds of force majeure caused by COVID-19. The Tribunal found it unnecessary to rule on force majeure as a legal matter. It held that the written phase could continue through remote work and pushed all deadlines back by 30 days. PO 7, ¶¶ 36–43
5. The claimants confirmed that they had no third-party funding agreement, written or oral, so they were in compliance with Section 11 of Procedural Order No. 1. They did not have to disclose their fee arrangements with counsel at that stage. PO 12, ¶¶ 28–31
6. Bolivia's witness Cristina Wanderley da Silva declined, on the last business day before the hearing, to appear for cross-examination on the advice of her lawyer. Her two witness statements were struck from the record and all references to them in Bolivia's pleadings were expunged. The Tribunal held that cross-examination is a fundamental due process right and that her reason for not appearing was not valid. PO 14, ¶¶ 14–19
7. The Tribunal has power under Articles 34(1), 42 and 43 of the UNCITRAL Rules to issue a partial award on advance costs. Bolivia could not withhold its share by 'self-help'. The claimants' application was nevertheless dismissed because they did not show that such an award was needed now; reimbursement is left to the final award. Bolivia's second request for security for costs was dismissed. The Tribunal found that the third-party funding of Black Cube's fees, which came to light at the hearing, and the other new evidence did not change its earlier analysis. PO 15, ¶¶ 59–81

Procedural history

1. 31 January 2018Mr. Orlandini and CMO file the Notice of Arbitration under Article IX of the Treaty.
2. 18 December 2018Terms of Appointment signed.
3. 1 January 2019Mr. Orlandini dies. On 21 March 2019 the Miami-Dade probate court appoints his widow, Francees Orlandini, as personal representative of the estate, and she ratifies the steps already taken in the arbitration.
4. 4 February 2019Procedural Order No. 1 issued (seat Paris; English and Spanish as languages of the arbitration; disclosure of third-party funding).
5. 9 July 2019Decision refusing termination, suspension, trifurcation and security for costs. The case proceeds to a joint phase on jurisdiction and liability.
6. 10 April 2020Procedural Order No. 7 refuses a COVID-19 suspension but extends all deadlines by 30 days. Bolivia's Statement of Defense is due on 6 May 2020.
7. 27 July 2020Procedural Order No. 8 decides the parties' document production requests.
8. 21 February – 6 March 2021Procedural Orders Nos. 9 and 10 give Bolivia a two-week extension for its Rejoinder and order limited production of documents relating to the witness statement of Dr. Avi Yanus of Black Cube.
9. 17–22 May 2021Hearing on jurisdiction and liability held by videoconference.
10. 12 November 2021Procedural Order No. 15 dismisses the claimants' application for a partial award on advance costs and Bolivia's second request for security for costs. The published documents do not show the award.

Tribunal, counsel and experts

Decided by

• Stanimir A. Alexandrov President
• Guido Santiago Tawil Co-arbitrator
• José Antonio Moreno Rodríguez Co-arbitrator

For the claimant

Quinn Emanuel Urquhart & Sullivan, LLP · Wayar & Von Borries Abogados S.C.

For the respondent

Dechert LLP

Experts

Arturo Yáñez Cortes (respondent) · Peter Spiro (claimant) · José Antonio Rivera (claimant)

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Keywords

• United States–Bolivia BIT
• mining concessions
• Mina Totoral
• Antequera River
• COMIBOL
• Martínez Case
• indirect expropriation
• denial of justice
• dual nationality
• dominant and effective nationality
• security for costs
• trifurcation
• bifurcation
• third-party funding
• Black Cube
• COVID-19 force majeure
• advance on costs
• striking witness statements

Summary generated with AI from the published documents — refer to the award for the authoritative text.