Chávez Takes Steps to Exit Global Forum
The Wall Street Journal
By José De Córdoba

President Hugo Chávez of Venezuela has taken steps to pull out of the global forum most used to settle investor disputes, where Caracas faces more than $40 billion in claims for nationalized properties.

Documents show that Mr. Chávez, shown in August, is moving to avoid financial sanctions from abroad.

Venezuelan officials have drawn up plans, at Mr. Chávez’s order, to withdraw from the International Centre for the Settlement of Investment Disputes, or ICSID, a unit of the World Bank in Washington, according to recent documents reviewed by The Wall Street Journal.

A withdrawal would be the latest in a series of actions Mr. Chávez has taken to protect Venezuela’s international assets from possible seizure by foreign governments and now, perhaps, creditors. Last month, Caracas announced it would transfer $6 billion in cash reserves held in European and U.S. banks to Russian, Chinese and Brazilian banks. Mr. Chávez also said he would move some 211 tons of gold valued at $11 billion held in foreign banks to Venezuela’s Central Bank vault in Caracas.

Venezuelan government documents say the main reason for those actions was to avoid financial sanctions by the international community, such as those that have frozen billions of dollars of Libyan government funds under Moammar Gadhafi’s Libyan regime.

Analysts peg Mr. Chávez’s fears to the possibility Venezuela could have to pay billions of dollars in compensation from companies that have had assets expropriated, or that future unrest in Venezuela could lead to international sanctions.

Venezuela’s withdrawal from the ICSID also would fit well the nationalistic bent that has led Mr. Chávez to expropriate 988 companies, 401 so far this year, according to Conindustria, a Venezuela industry chamber.

“It’s pure demagogy,” said Roberto Dañino, a former head of the ICSID. “Venezuela would like investors to submit themselves to national tribunals where there are no guarantees or due process.”

The Venezuelan Embassy in Washington declined to comment. Lawyers at Arnold & Porter LLP and Curtis, Mallet-Prevost, Colt & Mosle LLP, the two principal firms that Venezuela uses to defend itself from claimants at the ICSID, declined to comment.

A Venezuelan foreign ministry official said the country wasn’t considering withdrawing from ICSID now, though he acknowledged meetings on the subject had been held. Another Venezuelan official countered that the move was, in fact, now being debated by high-ranking officials.

Lawyers familiar with ICSID procedures say a Venezuelan withdrawal wouldn’t have any impact on the 18 claims that Venezuela now faces at the World Bank unit. For starters, it would only take effect six months after notice is given to the center, said Dietmar W. Prager, a lawyer with the New York firm of Debevoise & Plimpton LLP who has represented investors with ICSID disputes with Venezuela.

Further, bilateral investment treaties bind Venezuela to ICSID arbitration for a period, depending on the treaty, from between 10 to 15 years after the cancellation of an agreement, according to lawyers and Venezuela’s own documents.

“The Venezuelans can’t say I’m taking my marbles and going home,” said Michael Nolan, a lawyer at the Washington office of Milbank, Tweed, Hadley & McCloy LLP, who has represented clients with Venezuelan claims at the ICSID.

Eventually, the government papers say, Venezuela’s goal is to replace ICSID with a dispute-settlement mechanism that would fit within the framework of Latin American integration groups such as the Bolivarian Alliance for the Americas or the Union of South American Nations, which were either founded by or heavily influenced by Caracas.

“It may be a combination to play to the balcony and make Chávez appear as a regional leader leading an attempt to gut the international investment protection system,” said James Lloyd Loftis, who heads law firm Vinson & Elkins’s international dispute resolution practice.

A withdrawal would send an unfriendly signal about Venezuela’s policy towards foreign investment, Mr. Prager said. To be sure, foreign investors have already gotten the message, as foreign companies have been taking more assets out of the country than they have been putting in it. Foreign direct investment was a negative $3.1 billion in 2009 and a negative $1.4 billion in 2010, according to the United Nations Conference on Trade and Development.

At ICSID, companies lining up to seek compensation from Venezuela range from oil giants to gold mining companies, and include some of the world’s largest cement manufacturers. ConocoPhillips by far has the largest claim. The oil company wants to recover $30 billion in compensation for stakes in two projects in the Orinoco heavy oil fields, according to Reuters. Another oil giant, Exxon Mobil Corp., has cut its claim for compensation to $7 billion for Mr. Chávez’s 2007 seizure of a heavy crude project from an initial $12 billion, Venezuela said last year. An Exxon spokesman declined to comment.

Mexican cement maker Cemex and Swiss cement maker Holcim are seeking compensation for Mr. Chávez’ seizure of their plants in 2008 as part of the Venezuelan government nationalization of the country’s cement industry.

Holcim recently reached a $650 million settlement with Venezuela. The Swiss company has temporarily suspended its legal action depending on whether Venezuela complies with the terms of the settlement, said a person knowledgeable about the case. Cemex’s action is ongoing.

This year, Crystallex, a Canadian gold miner, filed an action seeking $3.8 billion in compensation for the government’s unilateral termination of a giant gold mining project. A spokesman for Crystallex said the company’s legal action wouldn’t be affected if Venezuela were to withdraw from ICSID.

Since 2007, Mr. Chávez has publicly contemplated a pullout from the ICSID. Some of his closest allies have already left. Bolivia pulled out in 2007 and Ecuador followed suit in 2009. Lawyers familiar with arbitration disputes say their withdrawal from ICSID pullout has not had any noticeable impact on claims against the two countries.

Venezuelan documents show that withdrawing from the ICSID would only start a complex and difficult process. Caracas would have to renegotiate bilateral investment protection treaties with 23 nations, including European countries to allies including Iran and Russia.