Experience

Counsel:

Commercial arbitration

  • Representing a licensor pharmaceutical company in a pharmaceutical licensing dispute, ICC Rules, German law, Frankfurt seat, amount in dispute > USD 5 billion
  • Representing a private equity licensor in a luxury licensing dispute, CIETAC Rules, Hong Kong law, Hong Kong seat, amount in dispute EUR 3.95 million
  • Representing a specialist sub-contractor in a major infrastructure construction dispute, HKIAC Domestic Rules, Hong Kong law, Hong Kong seat, amount in dispute HKD 122 million
  • Representing a seller in a sale of goods dispute in connection with a major Australian energy infrastructure project, ICC Rules, Spanish law and CISG, Madrid seat, amount in dispute USD 14.7 million
  • Representing an Indonesian subsidiary of a global major drilling company in an arbitration concerning onshore drilling services, BANI Rules, Indonesian law
  • Representing two Australian sports governing bodies in relation to a dispute with a statutory body providing venues, ad hoc arbitration under Resolution Institute Rules, Australian law, Sydney seat
  • Advising a French entity concerning a force majeure event at a power station in Mauritius

Investment arbitration

  • Representing Energy Charter Treaty/ICSID award creditors of $209 million (EUR 128 million) and $183 million (EUR 112 million) arbitral awards, respectively, in enforcement proceedings in Australia, against the Kingdom of Spain. Spain pleaded sovereign immunity from the jurisdiction of Australian Courts. The awards were the first intra-EU ECT awards enforced anywhere in the world. I developed, researched and co-drafted and drafted the public international law submission in support of enforcement: Eiser Infrastructure Limited v Kingdom of Spain [2020] FCA 157 and Infrastructure Services Luxembourg S.A.R.L & Anor v Kingdom of Spain [2019] FCA 1220
  • Representing an Australian registered foreign mining company in resisting attachment by garnishee order of an enforced ICSID arbitral award to its assets in Australia. The matter concerned the first ever ICSID award enforced in Australia. The Government of the Democratic Republic of Congo was the award debtor: Lahoud v The Democratic Republic of Congo (No 2) [2018] FCA 478
  • Representing a UK investor in an ICSID annulment proceeding, defending against an annulment application brought by the Government of Venezuela challenging a US$98 million award for the expropriation of a cattle farming business: Vestey Group Ltd v Bolivarian Republic of Venezuela (ICSID Case No. ARB/06/4) Decision on Annulment (26 April 2019)
  • Representing an investor in an UNCITRAL investment arbitration against the government of Yemen concerning alleged discriminatory treatment of Sabafon, a GSM telephony services company: Sabafon v Republic of Yemen, (UNCITRAL)
  • Representing the investors in an UNCITRAL investment arbitration against the government of Venezuela for alleged expropriation of the Claimants’ food distribution business: García Armas and others v. Venezuela (I), PCA Case No. 2016-08
  • Advising on pre-arbitral procedural steps including on the local litigation requirement under the Turkey-Turkmenistan Bilateral Investment Treaty
  • Advising on enforcement prospects to enforce an arbitral award against the Libyan state in light of the unstable post-conflict political situation (including the existence of competing governments of Libya and UN and EU sanctions)
  • Advising on jurisdictional issues in the context of prospective claims under the Venezuela-Germany Bilateral Investment Treaty in light of Venezuela’s denunciation of the ICSID Convention
  • Advising an Australian oil & gas major on the dispute resolution clauses in its renegotiated joint operating agreement and related contracts in respect of the Greater Sunrise gas field following the renegotiation of the maritime boundary in the Timor Sea
  • Advising a global energy major on its dispute resolution options with respect to a potential dispute with the Government of Papua New Guinea

Public international law

  • Representing Energy Charter Treaty/ICSID award creditors of $209 million (EUR 128 million) and $183 million (EUR 112 million) arbitral awards, respectively, in enforcement proceedings in Australia, against the Kingdom of Spain. Spain pleaded sovereign immunity from the jurisdiction of Australian Courts. The awards were the first intra-EU ECT awards enforced anywhere in the world. I developed, researched and co-drafted and drafted the public international law submission in support of enforcement: Eiser Infrastructure Limited v Kingdom of Spain [2020] FCA 157 and Infrastructure Services Luxembourg S.A.R.L & Anor v Kingdom of Spain [2019] FCA 1220
  • Advising on and drafting the governing law clause for one of the project finance modality types for an operating entity of the Financial Mechanism under the United Nations Framework Convention on Climate Change (UNFCCC)
  • Australian law advice for the Appellate Body stage of the World Trade Organisation (WTO) plain packaging dispute brought by the Government of Honduras against the Government of Australia: Australia — Tobacco Plain Packaging (Honduras)

Commercial litigation

  • Lead enforcement lawyer Representing ASIC in a criminal investigation into Maliver Pty Ltd and Melissa Caddick for carrying out a financial services business without at AFSL and unlawfully dealing with investor funds; urgent ex-parte application for asset preservation orders and prohibition on travel; conducting search warrant; application for the appointment of provisional liquidators and receivers: Australian Securities and Investments Commission v Melissa Louise Caddick & Anor
  • Representing ASIC in an investigation and civil penalty proceedings alleging misleading or deceptive conduct and false and misleading representations in relation to promised discounts for NRMA Insurance customers: Australian Securities and Investments Commission v Insurance Australia Limited ACN 000 016 722
  • Representing ASIC in an investigation and civil penalty proceedings alleging multiple failures to meet obligations of AFSL in context of an alleged wholesale ‘licensee for hire’ business: Australian Securities and Investments Commission v Lanterne Fund Services Pty Ltd
  • Representing ASIC in an investigation and civil penalty and disqualification proceedings in relation to alleged unlicensed credit activity and other breaches of consumer credit laws: Australian Securities and Investments Commission v Green County Pty Ltd (ACN 619 832 816) & Ors
  • Representing Energy Charter Treaty/ICSID award creditors of AUD 209 million (EUR 128 million) and AUD 183 million (EUR 112 million) arbitral awards, respectively, in enforcement proceedings in Australia, against the Kingdom of Spain. Spain pleaded sovereign immunity from the jurisdiction of Australian Courts. The awards were the first intra-EU ECT awards enforced anywhere in the world. I developed, researched and co-drafted and drafted the public international law submission in support of enforcement: Eiser Infrastructure Limited v Kingdom of Spain [2020] FCA 157 and Infrastructure Services Luxembourg S.A.R.L & Anor v Kingdom of Spain [2019] FCA 1220
  • Representing appellants in five appeal proceedings in the Victorian Court of Appeal concerning a failed initial public offering. Appeals concerned alleged breaches of directors’ duties; the disputed terms of the defendant law firm’s retainer; and related costs appeals: United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15; United Petroleum Australia Pty Ltd v Hudson [2020] VSCA 14
  • Representing an Australian registered foreign mining company in resisting attachment by garnishee order of an enforced ICSID arbitral award to its assetsI in Australia. The matter concerned the first ever ICSID award enforced in Australia. The Government of the Democratic Republic of Congo was the award debtor: Lahoud v The Democratic Republic of Congo (No 2) [2018] FCA 478
  • Advising a renewable energy company concerning the effectiveness of a contested payment claim submitted under the EPC contract and on the application Building and Construction Industry Security of Payment Act during construction of a 189MWp solar farm (then largest in Australia)

Regulatory investigations

  • Advising a client on a potential ASIC investigation
  • Lead enforcement lawyer Representing ASIC in a criminal investigation into Maliver Pty Ltd and Melissa Caddick for carrying out a financial services business without at AFSL and unlawfully dealing with investor funds; urgent ex-parte application for asset preservation orders and prohibition on travel; conducting search warrant; application for the appointment of provisional liquidators and receivers: Australian Securities and Investments Commission v Melissa Louise Caddick & Anor
  • Representing ASIC in an investigation and civil penalty proceedings alleging misleading or deceptive conduct and false and misleading representations in relation to promised discounts for NRMA Insurance customers: Australian Securities and Investments Commission v Insurance Australia Limited ACN 000 016 722
  • Representing ASIC in an investigation and civil penalty proceedings alleging multiple failures to meet obligations of AFSL in context of an alleged wholesale ‘licensee for hire’ business: Australian Securities and Investments Commission v Lanterne Fund Services Pty Ltd
  • Representing ASIC in an investigation into Courtenay House FX trading Ponzi scheme and referral to CDPP: R v Iervasi
  • Representing ASIC in an investigation and civil penalty and disqualification proceedings in relation to alleged unlicensed credit activity and other breaches of consumer credit laws: Australian Securities and Investments Commission v Green County Pty Ltd (ACN 619 832 816) & Ors
  • Marina helped to develop ASIC’s internal capability to manage court actions pursuant to s1323 of the Corporations Act, which concerns the power of the Court to prohibit payment or transfer of money, financial products or other property. Marina is the lead author of the s1323 chapter of ASIC’s updated internal enforcement manual (2022)

Tribunal Secretary

  • Marina has acted as tribunal secretary for a presiding arbitrator in a commercial arbitration under KCAB rules
  • Marina developed and drafted the ACICA Guideline on the use of Tribunal Secretaries (effective 1 January 2017) during her time at ACICA.
  • Marina was one of the first people to become an accredited Tribunal Secretary, completing HKIAC’s accreditation course in 2016 and passing the examination with Neil Kaplan

Sectors

Marina’s has represented clients in a wide variety of industry sectors, spanning contractual, regulatory and tortious disputes as well as disputes pursuant to international law. In particular, Marina has worked on disputes in the following industry sectors:

  • Energy (oil & gas, renewables, solar)
  • Financial services
  • Insurance
  • General Corporate (Directors duties, compliance with Corporations Act and ASIC Act, whistleblower protections)
  • Pharmaceutical
  • Construction (major projects)
  • Equity capital markets (IPO disputes)
  • Hospitality
  • Retail
  • Professional services (particularly in relation to accountants, auditors, lawyers and pharmacists)
  • Telecommunications
  • Agriculture
  • Sport

Governing laws

  • Marina has worked on disputes governed by and involving the following applicable laws: Australia, Hong Kong, England and Wales, Spain, Germany, Austria, United States, Indonesia, Mauritius, Turkmenistan, Yemen and Libya. International laws including the United Nations Convention on Contracts for the International Sale of Goods, EU law, the European Patent Convention, the Patent Cooperation Treaty, the ICSID Convention, and several bilateral and multilateral investment treaties

Selected procedural issues

  • Resisting the filing of an out of time rejoinder (CIETAC rules)
  • Resisting a plea of sovereign immunity by the Kingdom of Spain before the Courts of Australia on an application to enforce two ICSID awards: Eiser Infrastructure Limited v Kingdom of Spain [2020] FCA 157
  • Arguing in support of a stay of Australian court proceedings following the grant of an ICSID automatic provisional stay upon the filing of an application for annulment of an award: Infrastructure Services Luxembourg S.A.R.L & Anor v Kingdom of Spain [2019] FCA 1220
  • Resisting attachment by garnishee order of an enforced ICSID arbitral award to the assets of a Chinese-owned foreign registered mining company in the courts of Australia: Lahoud v The Democratic Republic of Congo (No 2) [2018] FCA 478
  • Opposing a security for costs application in an UNCITRAL investment arbitration against the government of Venezuela for alleged expropriation of the Claimants’ food distribution business: García Armas and others v. Venezuela (I), PCA Case No. 2016-08
talk to us about your legal issue or dispute

Liability limited by a scheme approved under Professional Standards Legislation.

marina@kofmanarbitration.comLinkedin
Site by DAVIDNOLAN