Saturday , October 1 2022

The back room of the new arbitration that shakes the lithium market


The next December 10 is a key date for Corfo and Albemarle. That day is the deadline for the corporation to submit its application for arbitration to the International Chamber of Commerce (CCI) against the United States for differences in preferential lithium prices that the company has to deliver to specialized state-appointed producers.

Behind the new conflict that hit non-metal mining, there is a series of talks with representatives of the state and former Rockwoood, whose position has generated discontent among companies trying to industrialize lithium in northern Chili. All meetings ended unconcerned.

The third premier He confirmed that the last hearing between the parties took place on October 17th. It was not registered by the lobby platform, because – according to Corfo – the law did not ask for it because Albemarle is a member of the company through a current contract.

It was an important meeting, because when Corfo finished, he surprised Albemarle announcing that he would file an arbitration by which he would demand the forced execution of the contract. Who and what topics did you speak at the meeting? It is subject to absolute discretion by the parties involved.

The nomination was accompanied in particular by the USA, Albemarle's vice president and adviser Terry Hammons, accompanied by Ignacio Mehech, regional prosecutor and Cristián Conejero, lawyer of Philippi Prietocarrizosa Ferrero DU & Uría (PPU) after the conflict.

At the meeting, the American director insisted on the position of the mining company and again there was no type of approach with Corfo.

At the same time, the recent arrival of Ellen Lenny-Pessagno, the new country director of the mining company, could at least open a window to change the course of talks that are currently in a deadlock.

The same sources consulted showed that representatives of the mining society at any time proposed to come out of the discrepancy with the state the different alternatives. However, they all share a reduction in the royalties or sales commission, claiming that the tax burden is very high. However, this offer was rejected by the state in a clear manner.

The company declares that "the contract signed with Corfo establishes that Albemarle has the duty to" offer its lithium products at the lowest export price parity (FOB Puerto Chileno) over the past six months to specialized value added producers " "However, in Corfo's call for companies interested in establishing themselves in the country and in subsequent adjudication, market and parity concepts are omitted, giving rise to an interpretation from Corfo, which we categorically reject."

For Albemarle, according to the contract, it is obliged to offer up to 25% of the production at the lowest price, the export market parity. The problem is that the term "parity" and "market" has been omitted in the call for offers from specialized companies. There would not be the same conditions. He is even more committed to producing lithium hydroxide, which he does not produce in Chile.

On the other hand, by signing, Corfo continued to prepare and add professionals to its legal team to deal with the conflict, whose sentence is estimated to be known no later than the next two years.

Last signing

According to experts in the field, the inclusion of related third parties – out of the market – and the exclusion of the parity price to determine "the lowest price of market parity" contradicts the language of the agreement and is the origin of the controversy that will be solved by arbitration.

In this process, Corfo sought legal advice. In this way, he asked Felipe Bulnes's advice to intervene in arbitration, but the lawyer asked to be disqualified to leave open the possibility of witnessing in the future if necessary. Former China agent of The Hague has previously participated in the negotiations leading to the transaction that ended the arbitration between Corfo and Soquimich. He also advised in the negotiations with Albemarle.

In fact, the dependency agency of the economy does not exclude even exclusion from the list of witnesses, once the arbitration process has advanced, former Corpo executive vice president, Eduardo Bitran.

Today, Corfo's legal team is headed by Andrés Jana, along with Rodrigo Gil, both lawyers, partners of Bofill Mir & Álvarez Jana. Then, the technical-legal team is the Corp lithium corp, where Eliana Muñoz, Leonardo Valenzuela, Enrique Mandiola, Pamela Bórquez and the prosecutor María Elina Cruz.

Corfo's legal strategy is coordinated by Corfo Executive Vice President, Sebastián Sichel, Andrés Baytelman.

* This note was updated at 14.01.

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