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These stories were published Tuesday, Jan. 13, 2004, in Vol. 4, No. 8
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Villalobos arbitration ready for next crucial step
By the A.M. Costa Rica staff

Jack Caine, the local organizer for an international response to the collapse of the Villalobos investment empire, said Monday that the next step in the process will take place soon.

In an interview Caine, himself an investor, displayed a detailed, 201-page document that is now being reviewed by a senior partner of a Canadian law firm. Once the go-ahead is given, the document will be filed with the International Centre for Settlement of Investment Disputes to kick off the arbitration process.

Caine and the law firm, Cain Lamarre Casgrain Wells, contend that Costa Rica has an obligation under international law to protect foreign investors. So far that theory has attracted 166 participants in the legal case. That’s 200 individuals, Caine said.
 

More on arbitration
BELOW!

The arbitration case will seek several hundreds of millions of dollars from Costa Rica to compensate Villalobos creditors who gave their money to the Mall San Pedro operation. Luis Enrique Villalobos is a fugitive, and his brother, Oswaldo is under house arrest, but Caine said that the arbitration case is against the country and not the former financiers.

The case is based on a number of agreements between Costa Rica and the United States, Canada and a host of European countries. Caine has contended that these agreements obligate Costa Rica to arbitrate the investors’ grievances. Costa Ricans cannot participate in a case against their own country.

Costa Rica has not responded rapidly. Caine said that the Costa Rican Embassy in Canada has been notified 16 times that arbitration was possible. He said the only reply was that the matter had been sent to the Ministerio de Relaciones Exteriores y Culto in San José. An attempt to arbitrate informally beforehand is one of the requirements of the international center.

Costa Rica now is engaged in informal negotiations with Harken Oil Co. Costa Rican officials hurried to the negotiating table when Harken filed a similar arbitration request with the international center, which is affiliated with the World Bank. Harken wanted $57 billion because Costa Rica canceled its oil drilling rights off the Caribbean coast. The oil company put arbitration on hold once Costa Rica agreed to friendly negotiations.

Caine said that Costa Rica is guilty of failing to follow its own laws and for not trying to fix flawed laws that would have led to tighter regulation of money exchange houses. Oswaldo Villalobos operated Ofinter S.A., a money exchange house in Mall San Pedro. The brothers say the two operations were separate. The Judicial Investigating Organization, in a report, said the money exchange house and Luis Enrique Villalobos’ borrowing business was one operation. Both firms were in the same office complex.

The arbitration request contains a litany of Costa Rican regulatory agencies that the investors contend were remiss in not supervising the Villalobos operation and its many corporations. Among the agencies criticized are state banks, the Central Bank and agencies that regulate banking and the stock exchange.

Caine said that once the document is filed with the international center in Washington, Costa Rica will be notified. The parties to the  arbitration, Costa Rica and the investors, will then have several months to pick members of the arbitration panel. Each side picks one and the two panel members then pick a third person, said Caine.

Investors have paid the law firm $500 to participate. They must make a second payment of $1,500 or more once arbitration begins, depending on the number of participants.

Caine is actively seeking more investors to join the case.

In addition, the law firm gets 10 percent of any final settlement.

Luis Enrique Villalobos paid creditors up to 3 percent a month on deposits of $10,000 or more. Investigators raided the operation July 4, 2002, seeking evidence of money laundering. The Villalobos brothers closed down their operation Oct. 14, 2002, and Luis Enrique vanished.

 
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Jailed magazine owner
released in murder probe

By the A.M. Costa Rica staff

The former boss arrested in the drive-by murder of Ivannia Mora Rodríguez is out of prison.

Investigators took the man, Eugenio Millot, into preventative custody Christmas morning as he was leaving the country by plane. He holds Uruguayan citizenship.

Ms. Mora, 33, died about 8 p.m. Dec. 23 when two men on a motorcycle assassinated her as her vehicle was stopped at a traffic signal in Curridabat.

Millot was jailed, in part, because he had serious business differences with Ms. Mora. she had recently left the magazine Estratagía & Negocios, which she helped found.

Juzgado Penal del II Circuito Judicial de San José allowed Millot to leave prison Monday, according to a spokesperson for the Poder Judicial. The release has been sought by the prosecutors in the case and was based, in part, on Millot’s health, the spokesperson said.

Millot had to agree not to leave the country and post a 3 million colon bond, some $7,140. In addition he agreed not to go near witnesses in the case and to sign in every 15 days.

The release of the former employer is consistent in a change in thinking among investigators who now seem to favor the theory that Ms. Mora was killed due to her journalistic activities. Her reporting took her into contact with many movers and shakers in the business world, and she was known as a diligent reporter who was an aggressive editor.

The triggermen were hired killers, so the search is one also for the intellectual author of the crime. Millot, himself, has said he has received threats, although the source of those threats have not been made public.

Journalistic colleagues of the dead newswoman have posted a $10,000 reward for information that leads to apprehension of the murderers.

Defensor targets
construction at beach

By the A.M. Costa Rica staff

The Defensor de los Habitantes has filed a constitutional case against the Ministerio de Ambiente y Energía, the municipalities of Nicoya and Santa Cruz, plus the Registro Nacional.

The dispute is over construction in the Refugio Nacional de Vida Silvestre de Ostional, which is famous as a breeding spot for turtles.

Since October 2002, the ministry has granted 15 use permits in the refuge even though there is no existing management plan to evaluate the permits, said the defensor. The permits have allowed the construction of building there, the court case says.

In addition, officials have tolerated the construction of structure even though there were no permits, said the defensor, José Manuel Echandi Meza.

The two municipalities are named in the case because the defensor claims they have issued building permits. The registro is named because the defensor said that the official registry of properties has accepted ownership papers on land that clearly is within the protected refuge.

The defensor asked the Sala IV constitutional court to suspend all permits, to seek demolition of illegal structures and to launch an investigation to see how the permits originated.

The refuge is on the Pacific coast of the Nicoya Peninsula just north of Nosara. In fact, the refuge runs to playas Pelada and Guiones, according to the description by the defensor.

Palmares festival
kicks off tomorrow

By the A.M. Costa Rica staff

The Fiestas Cívicas Palmares 2004 kicks off in that community tomorrow.

Thousands of tourists are expected, and police had detailed some 600 officers to keep an eye on possible trouble.

The fiesta is one of the largest in Costa Rica, although the Christmas Festejos Populares in Zapote is larger and attracts more people.

Transportation officials also are bracing for the influx of large numbers of vehicles. Police will maintain a mobile command center during the fiesta that runs through Jan. 26.

Police urged visitors to limit the amount of money they bring and to keep a good eye on youngsters.

Palmares is west of San José and north of Atenas

Airport police nab
man with full belly

By the A.M. Costa Rica staff

Anti-drug police said that a Paso Ancho man tried to leave the country Sunday with 1.3 kilos of cocaine hidden in his stomach.

The Policía de Control de Drogas arrested the man after they became suspicious of his movements at Juan Santamaría international Airport, officers said.

Police took the man, identified by the last names of Zúñiga Barrantes to a medical facility where he was x-rayed. Officers said the man had ingested about 100 small packages of cocaine.

The man had been booked on a flight to Madrid, Spain.

Burglary attempt
leads to shooting

By the A.M. Costa Rica staff

A man tried to break into a storage facility used by the Banco Nacional, but a guard challenged him about 10 p.m. Sunday. The man came at the guard with a pipe and the guard shot him once in the chest, according to the Fuerza Pública.

The man, later identified by the last names of Cerdas Rodríguez fell critically injured. The storage facility is across the street from Hospital San Juan de Dios, so that is where the man was taken by rescue workers.

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Some responses about the status of arbitration
This newspaper asked Jack Caine, the local organizer for a possible international arbitration case by investors in the Villalobos Brothers high-interest operation against the Costa Rican government, to answer some questions in writing because of the complexity of the issue. The responses have been edited only slightly. SUGEF and SUVAL are government regulatory agencies. OIJ is the Judicial Investigating Organization and ICD/CICAD is the Centro de Inteligencia y Control Anti Drogas.
 

1. In every disaster — from a car crash to a financial collapse — courts look at degrees of responsibility. In the case of Villalobos creditors, do they not bear a large amount of responsibility for giving their money to an unlicensed and unregulated individual who did not even give them a real receipt or a look at a balance sheet or a profit-and-loss statement or even told them what he would do with the money?

CAINE: I'm a little confused as to why you think that the investors invested in an unregulated business.  Ofinter was licensed, supervised and regulated by SUGEF and the Central Bank. When investors signed up, they signed a document (with little check boxes on it).  In this document, the investors were told exactly what they were investing in: a business that did the buying and selling of dollars and colons and that the guarantee was done with a check from the owner of the company. 

This document states:  "for each deposit you make, we issue a check on a local bank from the owner of the company.  This is a receipt/guarantee and is a legal document in Costa Rica that makes him as a physical person responsible to you for the amount it shows."  OIJ and ICD/CICAD reports have documented the captivation of public funds was an integrated part of Ofinter's business.  These reports justify this based on the fact that the operations were done in the same offices with the same employees and the managerial structure included managers from the money exchange and captivation operations and the investment/handling/transfer of the captivation of public funds. 

As far as what the investors were investing in, the document also states:  "our business is currency exchange; we buy and sell U.S. dollars and Costa Rican colons."  SUGEF regulates money exchange businesses.  In addition, SUGEF is suppose to regulate currency arbitrage operations per law 7558 (central bank law).  Drug law 7886 (1998) and its reform, law 8204 (2002).  Both state that regulations covering currency arbitrage must be published within three months of coming into force by the executive branch. 



Caine maintains a Web site that archives printed material in the Villalobos case as well as provides more explanations about arbitration.


Regulations covering currency arbitrage were never published, in violation of laws 7886 & 8204; However, this does not preclude Costa Rica's responsibility to regulate. Costa Rica had the obligation to publish these regulations because their own laws say they should have.  Not doing so is also a breach of international law and agreements in the area of transparency. 

Also, many investors were instructed to write their checks directly to Mercado de Valores S.A., a large stockbrokerage firm supervised by SUGVAL.  As far as a receipt is concerned, the investors have the guarantee checks, as you know, but some also have receipts of deposits. 
 

2. Many creditors and Luis Enrique Villalobos maintain that their relationship was one of friendship and not a business relationship. Does that affect the possible outcome of your international arbitration case?

CAINE: A single person does not have thousands of friends investing hundreds of millions of dollars in dozens of businesses.  To say this is in total conflict with reality.  I am sure that LEV (Villalobos) did have some clients that were long-term friends that invested in the Villalobos operations because of their friendship with LEV; however, the vast majority of the investors were not "friends" of LEV.  They did not spend time with LEV outside of the business environment.  They never had dinner with LEV or went to his home or to a soccer game with him. 

Some may have been members of the same church, but said church has a small active membership of approximately 200 persons, not the thousands who were invested.  People do business with people and companies they are friendly with; those they trust. I feel confident that the investors felt they could trust LEV.  Who would invest with a company they thought that they couldn't trust? 
 

3. Why is the case of the brothers and foreign creditors not just another example of a business going sour and people losing money. Why does this case rise to the level of an international dispute.

CAINE: A host country, such as Costa Rica, has obligations under international law to protect foreign investment.  When there are violations of this protection and there is a loss of the investment, the host country is responsible.  This ICSID arbitration case involves violations of obligations under international law. 

These obligations are under the following headings:  (a) Obligation to negotiate amicable to find a settlement when there is a dispute; (b) obligation to create favorable conditions; (c) obligation of transparency; (d) obligation to provide national treatment; (e) obligation to provide full protection and security and fair and equitable treatment under international law; and (f) obligation not to expropriate without providing prompt, adequate and effective compensation. 

These breaches in obligations are itemized in great detail in the notice of arbitration.   This case rises to the level of an international dispute because it could not be settled amicably between the two parties [and] involves violations of international law.  The ICSID tribunal will most certainly also take into account violations of domestic law by the Costa Rican government in determining the extent of breaches in international obligations.

4. We know that the Villalobos brothers are under investigation by the local prosecutors and that there probably are investigations elsewhere. How will the arbitration case be affected if the brothers are charged with and/or convicted of serious crimes stemming from their operation?

CAINE: The Villalobos Brothers have been under investigation by the Costa Rican government for money laundering and illegal financial intermediation since at least 1994-5.  In fact, documentation shows that AGEF (the predecesor of SUGEF) knew that Osvaldo was also operating a money exchange business without a license in 1995.  This is kind of sad, since knowing that there was a money laundering and illegal financial intermediation investigation and that there was illegal money exchange operations taking place, the Central Bank of Costa Rica still issued a license in 1996 to the Casa de Cambio Hermanos Villalobos S.A. 

Domestic proceedings against the Villalobos brothers are separate from the ICSID arbitration.  The investors notice of arbitration is against the Costa Rican government, not against the Villalobos brothers.  There is a lot of jurisprudence to support the allowance of concurrent international and domestic legal proceedings. 

The public ministry has put together a large amount of documentation to refute SUGEF and SUGEVAL’s claim that there is no evidence of illegal intermediation.  This documentation comes in the form of reports from the OIJ and ICD/CICAD.  The public ministry is using these documents to build their case against the Villalobos' for illegal financial intermediation and illegal intermediation of stocks.  In addition, the Contraloria General did a major study that was reported in June 2003. 

This evidence, while not intended by the Costa Rican government, has actually documented Costa Rica's violation of obligations under international law.  The issue to the investors (and to the ICSID tribunal) is not whether or not the Villalobos brothers are guilty of these serious crimes, but rather that there was a loss of foreign investment incurred because of violations of obligations under international law.
 

5. Investors in other companies from Savings Unlimited to The Vault to other deals that we may not have even heard of also lost lots of money. Do former clients of these companies also have a case in international arbitration?

CAINE: To the best of my knowledge, Cain Lamarre Casgrain Wells, the Canadian law firm handling the ICSID arbitration case for the Villalobos investors, is currently not working on the Savings Unlimited and The Vault cases for ICSID arbitration.  There are several reasons for this; however, one that is extremely basic. Charles Bergeron and I were not investors in Savings Unlimited or The Vault and do not have legal access to the domestic case files of these other businesses and investors of Savings Unlimited and The Vault have not provided copies of this documentation to Cain Lamarre for analysis.  The amount of work involved in analyzing the domestic case files is tremendous.
 

6. The Canadian law firm that is handling this case, Cain Lamarre Casgrain  Wells, or individuals there had considerable money with the Villalobos brothers, so they are unpaid creditors, too. Should they not have hired another law firm to represent them rather than being their own lawyer?

CAINE: To the best of my knowledge, none of the investors represented by Cain Lamarre in this case are employees of Cain Lamarre.  Charles Bergeron and his family have used this law firm for several decades for other cases and businesses.
 

7. There are a lot of financial disasters every day all over the world. Has there ever been a successful international arbitration case in which investors alleged that the country did not exercise strong financial controls?

CAINE: There have been cases in which ICSID tribunals have decided that a host government was correct in intervening [through financial controls] to protect investors.  The example given before, in the issuance of a license for a money exchange business in 1996 by the Central Bank while the Villalobos brothers were under investigation for illegal financial intermediation and money laundering and knowledge that Osvaldo was operating a money exchange business illegally is just one small example of a violation of obligations to protect investors through a "minimum" standard.  We're not even talking about "strong" financial controls here.  We're talking about the basics.
 
 

8. Considering that the Villalobos investigation is continuing and Luis Enrique Villalobos, a possible witness, is a fugitive, is your case, as the lawyers say, "ripe" for international arbitration?

CAINE: Lev's presence is not needed by our side to provide documentation that Costa Rica is in breach of it's international obligations.
 

9. Your case is based on the claim that Costa Rica failed to exercise reasonable governmental oversight of the Villalobos operation for as much as 22 years. During that time, did any of the participants in the current international arbitration file a complaint with the Costa Rican government about the Villalobos operation?

CAINE: Investors involved in the current ICSID arbitration case against the Costa Rican government started filing domestic legal and administrative proceedings to try to recover their investment when they became aware of the loss of their investment and a breach in international law, namely after July 4, 2002. 

Prior to this date, the investors involved in this arbitration had not lost their investment.  Documentation of the violations in obligations under international law did not become apparent until after the investors had gained limited access to the domestic case file.


 
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Summit split: Free trade versus poverty initiatives
By the A.M. Costa Rica wire sevices

MONTERREY, México — The leaders of 34 western hemisphere nations are here for the Special Summit of the Americas, focusing on such issues as trade, immigration and the fight against corruption. The main line of conflict emerging at the summit is between the U.S. push for free trade and the desire of some countries to tackle poverty directly.

In his remarks at the summit's opening session, U.S. President George Bush emphasized the benefits of free trade for the hemisphere. "Over the long term, trade is the most certain path to lasting prosperity," he said. "The openness of our market is the key driver of growth in the region and a testament to the United States' belief in the mutual benefits of trade."

To support his case, Bush said, last year, 83 percent of Latin America's exports to the United States entered duty free. He said this amounted to $176 billion worth of goods.

But some nations represented at the summit want to discuss a more aggressive approach to fighting poverty and strengthening democratic institutions. Canadian Prime Minister Paul Martin, whose country proposed this summit, told the regional leaders that the needs of the poor must always be the main concern.

"We must maintain our commitment to the social safety net, knowing that a successful society depends on a healthy, well-educated population," he said. "For some of the countries here, that is not going to be easy. That is why the developed economies must recognize our responsibility to assist, both bilaterally and through the hemisphere's very important regional inter-governmental institutions."

Some nations, including Brazil and Venezuela, have questioned the timing of the U.S. push to a hemispheric free trade accord. But the summit host, Mexican President Vicente Fox, urged them not to delay measures for prosperity.

He said regional nations should not wait until conditions are better before making important moves. He noted that the heroes of the hemisphere's history, like Thomas Jefferson, Simon Bolivar, Miguel Hidalgo and Benito Juarez had not waited to take action. He said this is what made them great.

The summit is to end late Tuesday with a formal declaration of principles.

Corruption would bar
official from U.S. visit

Special to A.M. Costa Rica

WASHINGTON, D.C. — Would-be visitors or immigrants to the United States will be barred from entry to the country if they have been linked to corruption, according to a presidential proclamation issued by the White House Monday. 

The document refers specifically to "corruption in the performance of public functions where that corruption has serious adverse effects on international activity of U.S. businesses, U.S. foreign assistance goals, the security of the United States against transnational crime and terrorism, or the stability of democratic institutions and nations."

The entry suspension is targeted specifically at public officials, former public officials, and those who have attempted to bribe public officials.

The proclamation is in keeping with previously stated administration goals to emphasize good governance and the prevention of corruption as essential ingredients to economic development. Corruption has been cited by the governments of the Group-of-Eight industrial nations and the World Bank as a threat to public trust, democracy and stability.

U.S. visa policy has been that corruption in itself is not grounds for denial or revocation of a visa.


 
Summit process is lauded as being effective
Special to A.M. Costa Rica

MONTERREY, México  —  The Summit of the Americas process has had a "significant" effect on improving the lives of the citizens of the Western Hemisphere, according to a new report issued by the Organization of American States.

The report, released before the start of the Special Summit of the Americas here Monday says, however, that this progress has gone "mostly unnoticed" beyond government leaders in the hemisphere and "hemispheric institutions."

The report, called "Advancing in the Americas: Progress and Challenges," highlights progress that has been made in the political, economic, social, and institutional arenas, although it concedes that significant challenges remain, such as the fact that 220 million people in the region (out of the hemisphere's total population of about 800 million) live in poverty, while one-fifth of the population lives in extreme poverty.

The Summit process, which began with the first Summit of the Americas in Miami, Florida, in 1994, has been praised by the United States and other countries for opening the door "for a new level of hemispheric consensus," the Organization of American States said.

Oerganization Secretary General Cesar Gaviria said in a statement Sunday that through the Miami summit and subsequent ones held in Chile in 1998 and Canada in 2001, "the countries of the region are taking a multilateral, cooperative approach to confronting many challenges" in the hemisphere.

"The inter-American agenda has grown enormously" since 1994, said Gaviria, "largely due to the development of the summit process."

John Maisto, U.S. permanent representative to the Organization of American States, said that "concrete results" must come from Summits of the Americas. He said "progress that can be measured" has resulted from the previous summits held since 1994, but added that future summits must continue setting "clear goals" for overcoming problems in the hemisphere.

The new report cites success in the hemispheric fight against poverty through efforts to improve health, education, personal security, and the protection of the most vulnerable groups in the region.

In the political realm, the report says that through the Inter-American Convention Against Terrorism, which is a part of the summit process, governments now guarantee broad-based and mutual legal assistance to make possible the prosecution of individuals who plan or commit terrorist acts.

The report also points to the hemispheric response against the scourge of drug trafficking.

Also highlighted in the report is the hemispheric goal to create a "comprehensive" and "fair" Free Trade Area of the Americas in the region by 2005. 

The trade agreement is designed to promote economic growth, development, and integration in the region while reducing poverty, the report says.


 
 
Reader says we have an agenda to slam country
Dear A.M. Costa Rica:

The Web page A.M. Costa Rica, in calling itself a "newspaper," has implicitly undertaken an obligation to report the news without bias, despite its editor's apparent desire to further his own political agenda while slamming Costa Rica and its citizens at almost every turn.

Clear examples can be found in the skewed article of Jan. 12, 2004, titled "Summit opens today but skepticism will reign" by A.M. Costa Rica "staff" (i.e. its editor): 

There has been a marked move to the left in Latin America in recent years, and Washington's agenda promoting free trade and economic liberalization is not always welcomed. 

The editor here is clearly stating support for the Central American Free Trade Agreement (CAFTA), which is not a free trade agreement at all, by gratuitously linking opposition to the agreement with the spectre of left-wing politics.  Try telling billionaire businessman Ross Perot that he's a leftist!

The editor goes on to claim that the U.S. government has an "agenda" to promote free trade and economic liberalization.  How does he figure?  CAFTA and NAFTA, while calling themselves free trade in an attempt to garner support that would otherwise not be forthcoming were they aptly named, are little more than underhanded back-room deals that allow foreign investors to overrule citizens' democratic rights. 

They call for the easy exportation of jobs and factories to countries like Communist China, which tolerates and encourages the use of forced labor.  Many good U.S. jobs are now in the hands of the Communists.  Who's the leftist after all?

Economic liberalization?  You call a 20 percent across-the-board pay cut in Mexico liberalization?  What in the world would constitute economic belt-tightening then?

Please don't call this travesty "free trade."  It isn't.  It has a name:  CAFTA. 

In the same article, the editor calls the U.S. Congress  "truculent."  That the U.S. Congress is populated mostly by idiots is pretty self-evident, but it's not up to you, editor, to pass off that point of view as news.  That's what opinion pages are for.

Finally, in the Jan. 12, 2004, article titled, "Big Guanacaste bridge has long-term implications," the following snipe is inserted into the second paragraph:

The viewing area is a place for tourists to take pictures, and motorists can see hundreds of people gazingat the structure as if it was one of the Seven Wonders of the World. 

That slap at Costa Rican pride is really an unfair kick in the teeth.  Costa Rica is a small country on the Central American isthmus. It isn't Disneyland.  If you're a fan of corporate welfare and 10-figure pork barrel projects, you'll feel much more at home in the U.S.A.

Stocker Brown
Guadalupe
1/13/04
EDITOR’S NOTE: The summit story to which the reader objects actually was a combination of local and wire service materials, as the byline said. The phrases to which the reader objects were written by reporters in Washington and correctly noted the left-wing political trend in Brazil, Venezuela and Argentina.
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