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GAR 100 - 10th Edition

B Cremades & Asociados

01 March 2017

Home to Spain’s best-known arbitrator

People in Who’s Who Legal 2
Current arbitrator appointments 23 (of which 13 are as sole or chair)
Lawyers sitting as arbitrator 2

Bernardo Cremades followed an unusual career path, starting out as an arbitrator aged 26 then moving into advocacy work. He has been involved, as counsel or arbitrator, in more than 360 proceedings to date, and now focuses most of his time on arbitrator work. Among other roles, he is a former vice president of the LCIA and a current member of the International Council of Commercial Arbitration. He is a founding member of the Spanish Arbitration Club and was, for many years, a president of the Spanish Court of Arbitration.

In terms of his jurisprudential contribution, his name is on many significant awards at ICSID, including cases that developed the mechanism of the formation of an arbitration agreement under an investment treaty; the relationship between contract and treaty claims; the effect of illegality on investment protection; and the definition of an investment. A source in Spain says his “influence can be seen in the most important judicial decisions in the field”, and he had a significant influence on the drafting of the 1998 Spanish Arbitration Law.

In 2013, Cremades’s contribution was recognised at a conference in Lima, Peru, where he and French arbitrator Yves Derains were presented with a liber amicorum with 96 contributing authors. In the same year, the King of Spain also presented Cremades with the Grand Cross of the Order of St. Raymond of Peñafort, in recognition of his services to the administration of justice and the study of law. He has also received a medallion from the Arab Association for International Arbitration recognising him as an “ideal arbitrator in Euro-Arab arbitration”.

The firm that bears his name, founded in 1969, is home to around 10 lawyers devoted to international arbitration, many of whom also undertake client work. It has a reputation for being Spain’s unofficial university of arbitration: a GAR special report on Spain discovered that at least half of the leading Spanish names in the market had earned their stripes at B Cremades & Asociados.

While many of those colleagues have moved on to pastures new, partner David Cairns is now also a well-known figure in his own right and also sits as an ICSID arbitrator. Educated in New Zealand, Cairns has worked in Madrid since 1999. He has featured in GAR’s “45 under 45” – a list of the leading younger practitioners in the field.

The founder’s son, Bernardo Cremades Jr, joined the firm in 2013 from Curtis Mallet-Prevost Colt & Mosle in New York. While at Curtis he advised on several high-profile arbitrations, including helping to defend Venezuela in ICSID claims initiated by US oil company ConocoPhillips, Mexican cement group Cemex and US telecoms investor Brandes.

Track record

The firm reports two successes for Gas Natural in pricing arbitrations against another Spanish energy company. Several billion dollars were at stake in each case.

Another public win was for Spanish road builder Elsamex in an ICSID claim against Honduras concerning withheld payments for the reconstruction of a road destroyed by a hurricane. A sole arbitrator awarded the company US$8 million in 2012. Honduras later settled with the investor after abandoning its effort to have the award annulled.

The firm has worked wonders for another client, helping to set aside an award in a dispute between a major German textile brand and its Spanish licensee. The firm hadn’t been involved in the original arbitration but went on to represent the client in a second arbitral proceeding where damages were reduced by 60 per cent and a counterclaim for more than €243 million was upheld. They are now helping the client sue the arbitrators from the first proceeding for damages, and have obtained favourable court rulings at two instances; a Supreme Court appeal is pending.

In 2014, Cremades’s firm also brought home a €61 million win for Spanish shareholders in a multinational food group who brought a claim against its French parent company.

Recent events

The firm promoted Javier Juliani to the partnership.

Cairn received his first appointment as arbitrator at ICSID from a Canadian investor bringing a US$200 million NAFTA claim against Mexico.

The firm helped a large utility company favourably settle a €94 million claim brought by another public-private entity in the Spanish electricity sector.

Brazilian football club Santos FC continues to use the firm in a dispute over the sale of Brazilian soccer star Neymar to FC Barcelona. The claim, which is against FC Barcelona, Neymar’s father and his family’s holding company, is being heard before the FIFA Players’ status committee. The firm also helped the club see off a related criminal complaint in the Spanish courts lodged by a Brazilian investment fund.

Bernardo Cremades enjoyed another active year as arbitrator. He was part of an ICC panel in Geneva that awarded more than €550 million to Russian state-owned nuclear company Atomstroyexport in a politically sensitive dispute with Bulgaria’s national electricity company.

At ICSID, he was part of an ad hoc committee that upheld a controversial US$376 million award against Romania that the European Commission has denounced as illegal state aid.

He sat on a NAFTA panel that ordered Canada to pay more than US$21 million to a US investor in a failed wind energy project – thought to be the largest sum awarded against Canada under the trade agreement.

Cremades also delivered the 2016 Chartered Institute of Arbitrators’ Alexander Lecture – using the opportunity to highlight the abuse of due process in international arbitration, which he said has become “a real threat” to tribunals.