The new arbitrage backroom that shakes the lithium market



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The next December 10 is a key date for Corfo and Albemarle. That day is the deadline for the corporation to file its claim of arbitration with the International Chamber of Commerce (ICC) against the US for differences in the lithium preferential prices that the company must deliver to the state-designated specialized producers.

Behind the new conflict that rocked nonmetallic mining, there are a series of talks by representatives of the state and former Rockwoood, whose position has generated discomfort in companies seeking to industrialize lithium in northern Chile. All the meetings ended without agreement.

The third PM He confirmed that the last hearing between the parties occurred on October 17. It was not registered by the Lobby Platform, because – according to Corfo – the law did not require it, since Albemarle is a member of the company through a current contract.

It was an important meeting because when Corfo finished he surprised Albemarle by announcing that he would file an arbitration suit demanding enforced contract compliance. Who and what topics did you address at the meeting? It is kept absolutely by the parties involved.

The appointment was especially made by the US, Albemarle's Vice-President and General Counsel, Terry Hammons, accompanied by Ignacio Mehech, Regional Prosecutor and Cristián Conejero, attorney for Philippi Prietocarrizosa Ferrero DU and Uría (PPU), who is advising the company on following the conflict.

At the meeting, the US executive insisted on the position of the miner and, again, there was no kind of approach with Corfo.

Similarly, the recent arrival of Ellen Lenny-Pessagno – the new national manager of the miner – could at least open a window to change the course of negotiations that are currently at a standstill.

The same sources consulted indicated that representatives of the mining company at all times have proposed as an outlet for discrepancy with the different state alternatives. However, all have in common a reduction of royalty 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 states that "the contract signed with Corfo establishes that Albemarle has a duty to" offer its lithium products at the lowest export market parity price (FOB Puerto Chileno) of the last six months to specialized producers of value products added. "However, in Corfo's call for companies interested in settling in the country and in subsequent adjudication, the concepts of market and parity are omitted, which gave rise to an interpretation of Corfo that we categorically reject.

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

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

Last Signature

According to experts in the field, the inclusion of related third parties – outside 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 source of the controversy that will have to be resolved by arbitration .

In this process, Corfo sought legal advice. In this way, he asked Felipe Bulnes for advice to intervene in arbitration, but the lawyer asked to be disqualified to leave open the possibility of being a witness in the future if necessary. The former Chilean agent in The Hague participated previously in the negotiations that led to the transaction that ended the arbitration between Corfo and Soquimich. He also advised in negotiations with Albemarle.

In fact, the agency dependent on the Economy does not even rule out including in the list of witnesses, once the refereeing judgment has advanced, the former executive vice president of Corfo, Eduardo Bitran.

Today, Corfo's legal team is led by Andrés Jana, along with Rodrigo Gil, both lawyers, members of Bofill Mir & Álvarez Jana. Then there is the technical-legal team that is the Cortio Lithium Unit, where are Eliana Muñoz, Leonardo Valenzuela, Enrique Mandiola, Pamela Bórquez and the promoter María Elina Cruz.

Corfo's legal strategy is being coordinated by the chief of staff of Corfo's executive vice president, Sebastián Sichel, Andrés Baytelman.

* This document was last updated 14.01.

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