A Chilean outfit with a number of ICSID wins to its name
|People in Who’s Who Legal||1|
|Pending cases as counsel||19|
|Value of pending counsel work||US$650 million|
|Current arbitrator appointments||8 (of which 4 are as sole or chair)|
|Lawyers sitting as arbitrator||1|
Chile’s most active player in investment treaty arbitration, Bofill Mir & Álvarez Jana largely owes its reputation in the field to Harvard-educated partner Andrés Jana, a former government lawyer who has helped to negotiate several of Chile’s free trade agreements. He is a member of the ICSID panel of arbitrators and the LCIA and, as of 2017, a vice chair of the International Bar Association’s arbitration committee.
Other partners to know are Rodrigo Gil, who has practised with Arnold & Porter, and Rodrigo Quintana, who previously worked for the Organization of American States. Dutch-born of counsel Johanna Klein Kranenberg has successfully defended Chile in Dutch court litigation involving sovereign immunity issues, and also advised Eritrea in a successful claim for war damages before the Eritrea-Ethiopia Claims Commission in The Hague.
Who uses it?
Chilean and international companies often turn to the firm to advise in arbitrations at the country’s main arbitration centre, CAM Santiago, as well as foreign-seated cases with a Chilean-law component. The firm’s international clients have included AES, Bechtel, Domino’s Pizza, Japan’s Mitsui and Lumina, Canadian mining companies New Gold and Quadra, Colombian confectioner Colombian and Brazilian engineering company Alusa.
Clients in Chile include state-owned copper company Codelco, Antofagasta Minerals, ENAP Refinerías, pharmaceuticals distributor Pentafarma, Deloitte and the National Association of Professional Soccer.
The Chilean government has also turned to the firm for advice in cases at ICSID and the International Court of Justice.
At ICSID, the firm’s track record is excellent. It obtained a US$48 million award for Chilean mining company Quiborax in September 2015, in a nine-year case against Bolivia over the cancellation of a mining concession. Bolivia is now seeking to have the award annulled.
In the previous year, it also helped Swiss airport services company Flughafen Zürich and its Chilean partner win around US$34 million in an ICSID claim against Venezuela over a Caribbean island airport concession. Notably, the tribunal made a rare finding of denial of justice against the state. The firm is now commencing efforts to enforce the award while Venezuela pursues an annulment bid.
Another victory at ICSID came in 2007, when the practice helped the government of Chile defeat a claim by a Spanish investor over fishing rights. The tribunal threw out the case on jurisdictional grounds, a decision upheld by an annulment committee three years later. Bofill Mir was co-counsel with Arnold & Porter (where Jana was a foreign associate in the 1990s).
The firm has also had a hand in important arbitration-related Chilean court precedents. In 2014, it helped the European Southern Observatory, a Munich-based astronomical research body, defeat a set-aside petition before the Santiago Court of Appeal, a decision that dispelled doubts as to whether foreign lawyers were permitted to appear in international cases seated in Chile.
In 2013, the firm persuaded the country’s Supreme Court to dismiss an appeal against the recognition of an ICC award in favour of its client, Domino’s Pizza, establishing that such a recourse was inadmissible.
Pedro Pierry, a former member of the Chilean Supreme Court, joined the firm as counsel and is acting on arbitration-related litigation before the Chilean courts.
The firm persuaded an ICSID committee to lift a stay of enforcement of the Flughafen award after Venezuela failed to post an unconditional bank guarantee for the full amount of the award. Efforts to enforce the award are getting underway.
Bofill Mir also helped a refining unit of Chilean state petroleum company ENAP win more than US$16 million in an arbitration with Germany’s Linde group in a dispute over a hydrogen and steam delivery contract.
The European Southern Observatory praises Jana and Gil as “very skilled and dedicated professionals” whose “precise and convincing” arguments were fully adopted by the Santiago Court of Appeal in the case mentioned above.