Won a big payout from Mongolia but a high-profile ICSID case ran aground
|People in Who’s Who Legal||1|
|Pending cases as counsel||10|
|Value of pending counsel work||US$2.6 billion|
|Current arbitrator appointments||32 (of which 31 are as sole or chair)|
|Lawyers sitting as arbitrator||1|
Crowell & Moring’s international arbitration practice was established in 2005 as an offshoot of its Washington, DC-based litigation practice. The group really took off in 2007 with the hire of a ready-made team from Fulbright & Jaworski, including Arif Hyder Ali, who became practice chair. It rapidly took on some weighty ICSID and commercial matters, and earned a place in every edition of the GAR 100 from 2008 until 2012.
In that year, Ali and three other partners left for Weil Gotshal & Manges, while another moved to Jones Day. These days, the group is co-chaired by Ian Laird – a Canadian with NAFTA experience who was part of Ali’s ex-Fulbright team – and a stalwart of the firm, George Ruttinger. A more recent arrival to the partnership is English lawyer Adrian Jones, who joined from Fasken Martineau in 2014 and has experience in oil and gas, mining and financial services disputes.
While the practice may not enjoy the same profile as before, it still acts on some significant investor-state cases.
Most of the international arbitration team is based in DC, with others in New York, London and Brussels. The firm also has offices in Cairo and Riyadh.
Who uses it?
Mining companies regularly turn to the firm for investor-state claims, including Canada’s Khan Resources and Pacific Rim. Other investors have used it in claims against Egypt, Turkey and Lithuania.
In commercial cases, its clients include lifestyle products company Philips, luxury goods brand Hermès, beauty group L'Oréal and hotelier Marriott International, as well as the likes of Alstom, AT&T, Marriott International, Cern, JPMorgan Chase and Axa. Online retailers Amazon, Booking.com and Vistaprint have also used the firm in domain disputes before the ICDR and the California-based internet regulator, ICANN. Bank of America and the US’s Duke Energy have turned to the firm for ICSID-related enforcement matters.
The firm has a reputation for its creative approach to alternative fee arrangements, which it has employed in its arbitration work.
One of the firm’s most impressive recent results was helping Khan Resources win a US$100 million Energy Charter Treaty award against Mongolia in 2015 over the cancellation of uranium mining licences. After Khan launched enforcement proceedings in the US, Mongolia paid US$70 million in 2016 to settle the case.
Some of the firm’s recent ICSID cases haven’t gone to plan (see below). But it’s had better luck on the enforcement side of things. In 2012, it helped the US’s Duke Energy win confirmation of an US$18 million ICSID award against Peru in the DC courts. (An earlier incarnation of the Crowell practice acted in the original arbitration.)
A seven-year ICSID case brought on behalf of Pacific Rim against El Salvador came to a disappointing end in 2016, with a tribunal throwing out the US$250 million claim on the merits and awarding the state US$8 million in costs. Pacific Rim (which was acquired by Australia’s OceanaGold over the life of the case) had brought the claim over the state’s refusal to grant it mining licences on environmental grounds. The dispute had become a focal point for criticism of investor-state dispute settlement and triggered NGO protests outside the World Bank.
But there were successes too. Apart from settling Khan’s feud with Mongolia, the firm won a US$200 million LCIA award for South African platinum producer Impala Refining, which was enforced by a US court (Adrian Jones worked on the case alongside his former firm Fasken). It also won a favourable ICANN award over use of the “.hotel” extension, and is working on another case over a client’s right to use the internet to distribute sport reports.
In New York, the firm promoted Arlen Pyenson to counsel.