Chile’s biggest player at ICSID
|People in Who’s Who Legal:||1|
|Pending cases as counsel:||12|
|Value of pending counsel work:||US$861 million|
|Current arbitrator appointments:||4 (of which 1 is as sole or chair)|
|Lawyers sitting as arbitrator:||1|
One of Chile’s most active players in investment treaty arbitration, Bofill Mir & Álvarez Jana’s reputation in the field is largely thanks 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 joined the London Court of International Arbitration in 2013. He is also president of the Americas Initiative, a project by the Institute for Transnational Arbitration that promotes international arbitration in Latin America.
The other partner in the practice is Rodrigo Gil, who has practised with Arnold & Porter in Washington, DC, and London. Another key member of the team is Dutch-born counsel Johanna Klein Kranenberg. She 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.
In 2013, the firm added Russian and German educated Elina Mereminskaya as an associate. She brings five years’ experience as special counsel at Chile’s main arbitration centre, CAM Santiago, and recently published a book on international commercial arbitration in Chile.
Who uses it?
The government of Chile, mining company Quiborax and Swiss airport services company Flughafen Zurich have all turned to the firm for ICSID matters.
Chilean and international companies often turn to the firm to advise in arbitrations at CAM Santiago as well as foreign-seated cases with a Chilean-law component. Clients in Chile include Antofagasta Minerals, pharmaceuticals distributor Pentafarma and the National Association of Professional Soccer.
The firm’s international clients have included AES, Bechtel, Domino’s Pizza, Japan’s Mitsui, Canadian mining companies New Gold and Quadra, Colombian confectioner Colombina and Brazilian engineering company Alusa.
Bofill Mir scored a remarkable victory in late 2014 for Flughafen Zurich and its Chilean partner in an ICSID claim against Venezuela concerning a contract to expand and operate an airport on the Caribbean island of Margarita. Remarkably, the tribunal found the state liable not only for expropriation but also for a denial of justice through the actions of its Supreme Court. Venezuela was ordered to pay US$19 million plus interest and more than US$2 million in costs. Altogether, the award is thought to be worth around US$34 million.
The firm also helped Chilean mining company Quiborax win a jurisdictional victory in a long-running ICSID claim against Bolivia in 2012. A ruling on the merits is still awaited.
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. A majority of the tribunal threw out the case on jurisdictional grounds because the Spain–Chile BIT was not in force when the investor was first denied his licence. That decision was upheld by an annulment committee in 2010. For both sets of proceedings, 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 2013, it persuaded the country’s Supreme Court to dismiss an appeal against a lower court ruling that recognised an ICC award in favour of its client, Domino’s Pizza. The Supreme Court ruled for the first time that such a recourse against the confirmation of an award was inadmissible. Since then, the court has reached the same conclusions in three other cases.
Another good result was helping Brazil’s Alusa to reduce a US$31 million ICC claim by Siemens to a US$5 million award, and then facilitating a settlement.
In 2014, Andrés Jana’s brother Alvaro, a civil litigation and antitrust lawyer, returned to the firm’s foreign trade and dispute resolution practice after two years with the Chilean government’s international trade department.
Andrés Jana was an adviser to Chile in its maritime boundary dispute with Peru before the International Court of Justice, which came to an end in early 2014.
Jana continues to develop his arbitrator practice. He’s sitting as Costa Rica’s appointee on an ICSID panel hearing claims by Swiss subsidiaries of Mexican gas distributor Grupo Zeta, relating to the propane market. He’s also chairing an annulment committee reviewing an US$11 million award in favour of a Spanish road builder against Honduras.
In 2014, Bofill Mir helped the European Southern Observatory, a Munich-based intergovernmental body devoted to astronomical research, defeat a set-aside petition before the Santiago Court of Appeal. The court upheld an ad hoc award that had dismissed claims by a Chilean company over a road resurfacing contract. Among other things, the decision dispelled doubts as to whether foreign lawyers were permitted to appear in international cases seated in Chile. It also marked the first time in Chile that a defeated petitioner has been asked to bear all the costs of a set-aside proceeding, which the firm hopes will deter future ill-founded challenges.
Bofill Mir & Alvarez Jana is a full service Chilean law firm recognised for providing innovative and effective client service in a broad range of practices areas. The firm’s 70 plus attorneys come from the most prestigious universities in Chile, and many have LLMs from the finest programmes in North America, Europe and Chile and have worked in major international law firms abroad.
Main practice areas
International Arbitration: Comprised of both national and international lawyers, BMAJ is one of the leading international arbitration firms in Latin America and offers quality comparable to the world’s leading law firms. BMAJ constantly acts in arbitrations under the rules of ICSID, ICC, UNCITRAL and LCIA, as well as in ad hoc arbitrations.
Arbitration: The firm is well-regarded as having the largest and most experienced arbitration team in Chile. BMAJ frequently represents clients in the biggest and most complex domestic arbitrations, both under the rules of the Arbitration and Mediation Centre of the Santiago Chamber of Commerce (CAM Santiago) and in ad hoc proceedings. BMAJ is continuously setting the standard in the practice of domestic arbitrations.
Civil and Commercial Litigation: This practice is deeply involved in public interest litigation and complex cases requiring the collaboration of different legal fields. BMAJ has experience with disputes before lower level courts, courts of appeal and the Supreme Court.
Corporate Law: A strong team of corporate law specialists guide clients through the implementation of, and compliance with, the increasingly complex rules and regulations of company law and corporate governance. The corporate lawyers offer counsel to clients on a broad range of business activities including complex reorganisations, structuring and negotiation of commercial transactions in all sectors of Chile’s diverse economy.
Mergers and Acquisitions: The solid, broad base of knowledge and experience of the lawyers permits the firm to provide comprehensive counsel in mergers and acquisitions matters, and has positioned BMAJ as a leader in the development, negotiation and execution of complex and innovative mergers and acquisitions transactions, both domestic and cross-border. The team is highly qualified in areas of commercial, finance, tax, labour, administrative and competition law matters, among others.
Banking, Finance and Capital Markets: This practice provides advice to banks, financial institutions and private businesses, both Chilean and foreign. The firm has a strong background in project financing in diverse areas of the economy, including real estate, retail, power generation, mining, and oil and gas sectors.
Administrative Law, Environmental Law and regulated markets: At the forefront of these matters in Chile, this team acts on behalf of multinational companies, local enterprises and state entities in matters relating to regulated sectors such as energy, telecommunications, land use and development, public transport, water law, customs law, environmental law, public procurement, health services, gaming and casinos, and advertising.
Antitrust and Unfair Competition: BMAJ has a specialised department with experience in complex merger reviews, cartel investigations, concentration and abuse of dominant position issues, market definition, unfair competition and counsel in connection with investigations conducted by the Antitrust Authorities (FNE).
Mining and Natural Resources: The members of this practice group are recognised in the mining sector both in Chile and abroad as leaders in their field and are highly specialised in mining, geothermal power and water law. The team also has deep experience in the financing of mining projects.
Energy: This vibrant energy practice advises project developers, operators, financial backers and public authorities in matters related to power generation, transmission and distribution. Our counsel covers renewable energy sources including solar, wind, run of river and geothermal as well as traditional energy sources.
Construction, Infrastructure and Real Estate: BMAJ possesses significant expertise in the counselling of national and foreign clients acting as investors, shareholders, developers, contractors or suppliers of construction, real estate and infrastructure projects.
Labour: This practice advises the firm’s clients in all sectors of the Chilean economy both regarding daily operational matters such as hiring, terminations, compliance matters and collective bargaining negotiations as well as with long-term strategic analysis and planning of their employment concerns.
Tax: Working in conjunction with members of the other practice areas of the firm, the tax specialists provide creative tax planning, permitting the firm’s clients to reach their business goals in a tax effective manner.
Telecommunications (TMT): BMAJ has significant expertise in providing comprehensive advice to different operators in the telecommunications and broadcasting sector, including telephone, mobile and internet service providers, broadcast television channels and telecom tech service providers.
Bofill, Mir & Álvarez Jana
Andrés Jana, partner, [email protected]
Tel. +56 2 2757 7807
Rodrigo Gil, partner, [email protected]
Tel. +56 2 2757 7610