The market leader in Chile for investor-state disputes
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Chile’s most active player in investment treaty arbitration, Bofill Mir & Álvarez Jana (BMAJ) 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.
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.
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. Dutch-born of counsel Johanna Klein Kranenberg successfully defended Chile in Dutch court litigation involving sovereign immunity issues, and advised Eritrea in a successful claim before the Eritrea-Ethiopia Claims Commission in The Hague.
The firm’s track record at ICSID is excellent. It obtained a US$48 million award for Chilean mining company Quiborax in 2015 in a case against Bolivia over the cancellation of a mining concession. Bolivia is pursuing an application to annul the award.
BMAJ also helped Flughafen Zürich and its Chilean partner win US$37 million in an ICSID claim against Venezuela over the expropriation of a concession to run the international airport on the island of Margarita in the Caribbean Sea. The tribunal made a rare finding of denial of justice against Venezuela, which is seeking to annul the award.
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.
It has also had good results before the Chilean courts in arbitration-related matters. In 2015, the firm helped Codelco persuade the Santiago Court of Appeal to annul a CAM Santiago award worth US$16 million in favour of E-CL, a Chilean subsidiary of France’s Engie. The dispute concerned a power purchase agreement for the Chuquicamata mine.
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.
BMAJ is advising one of the companies in the Grupo Unidos por el Canal consortium in their US$1.6 billion dispute with the Panama Canal Authority over the cost of the waterway’s expansion.
Other recent instructions have come from Pacific Hydro Chile, a subsidiary of Australia’s IFM Investors, in a dispute over a hydroelectric plant; a subsidiary of Canadian mining company Barrick as part of efforts to reactivate the Pascua-Lama Project in the Andes; and BHP Billiton.
The firm defended Colombian company Matriz Ideas, owner of the home design brand Casa Ideas, against a US$33 million arbitration brought by Panamanian franchisee Arce Holding. It went on to successfully defend the award in annulment proceedings brought by Arce.
Away from his counsel work, Jana sat on an ICSID tribunal that dismissed a US$75 million claim against Costa Rica brought by Swiss subsidiaries of Mexican gas distributor Grupo Zeta. The case concerned allegations of price-fixing in the liquefied petroleum gas market.
The European Southern Observatory praised Jana and Gil as “very skilled and dedicated professionals” whose “precise and convincing” arguments were fully adopted by the Santiago Court of Appeal in its 2014 case.