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GAR 100 - 10th Edition

Bird & Bird

06 March 2017

Defending Poland against several investor claims

Current arbitrator appointments 10 (of which 7 are as sole or chair)
Lawyers sitting as arbitrator 8

Bird & Bird’s arbitration group has distinguished itself primarily in the fields of intellectual property and sport.

The practice has grown steadily in the past few years, steered by Annet van Hooft in Paris, a former ICC counsel who joined from Jones Day in 2011, and London-based Steven Baker, former head of commercial disputes at Olswang, who arrived a year later.

Through their efforts the practice has been attracting more mainstream commercial and investment treaty work, particularly relating to energy.

Asia is increasingly an area of focus. Partner Richard Keady heads the Asia-Pacific dispute resolution practice from the Hong Kong office, where partner Robert Rhoda joined in 2016. Another former Olswang partner, Jonathan Choo, recently joined the Singapore office.

Network

Bird & Bird spans 28 offices in 19 countries across Europe, the Middle East and the Asia-Pacific region. For arbitration, its main centres are London, Paris, Madrid, Stockholm, Warsaw and Hong Kong but it also has boots on the ground in Finland, Germany, Italy, the Netherlands, Australia and now Singapore.

Who uses it?

A lot of the practice’s clients still come from the IP-rich technology sector and the sporting world but it’s also advised Accenture, Airbus, Nokia and French pharmaceuticals group Sanofi.

Poland and the Czech Republic are among the states using the firm on treaty matters.

Meanwhile the sports practice has acted for the World Anti-Doping Agency (WADA), the International Tennis Federation, the International Paralympics Commission, the head of Jordan’s football association and many of the UK’s more important sporting bodies.

Track record

Around 2013, the firm helped a Sanofi affiliate win a series of ICC awards worth US$170 million in a patent licensing dispute with Genentech, a US affiliate of Switzerland’s Roche Group. The case has spawned court proceedings in France and the European Court of Justice.

In 2012, it had a good result for Nokia in an SCC arbitration against RIM, the maker of BlackBerry, over patent rights. The size of the awards isn’t public but is believed to be in nine figures.

It also obtained a victory for Nokia in a multibillion-dollar ICC arbitration against Samsung over a patent licence.

The Prague office helped the Czech government see off a US$9 million investment treaty claim by a UK investor in a rooftop carrier production facility in Moravia.  

Bird & Bird also helped a global transportation company settle a US$61 million investment treaty claim against a South American country in 2015. The case was being heard at the ICC.

Highlights for the sports practice have been representing the German Football Association against the club SG Dynamo Dresden, obtaining a landmark decision on the strict liability of football clubs for the improper conduct of their supporters. It also won for WADA in a sensitive dispute in the run-up to the London Olympics about whether the organisers could permanently ban drug cheats. The answer? No.

Recent events

The firm led Sanofi to another triumph in July 2016, when the European Court of Justice ruled that its US$170 million patent licensing award against Genentech didn’t breach EU competition law. The ECJ had been considering a question referred by the Paris Court of Appeal, where Genentech (represented by Freshfields Bruckhaus Deringer and Shearman & Sterling) is trying to set the award aside.

A team in Warsaw succeeded in reducing an €82 million treaty claim against Poland to an award worth €18 million in a dispute over duty-free stores at a Warsaw airport. The firm is understood to be defending Poland in at least two other treaty cases at the SCC: a US$600 million claim by a Luxembourg company relating to an investment in a Polish bank; and an even bigger claim by a group of Cypriot investors.

On the investor side, the firm failed to persuade an SCC tribunal to uphold its clients’ Energy Charter Treaty claim against Spain concerning reforms to the tariff regime for solar power. A tribunal ruled in early 2016 that the measures didn’t violate investors’ legitimate expectations – the first time an arbitral panel has ruled on the matter. A second claim by the same investors concerning other measures affecting the sector is pending.   

The firm’s sports practice had a busy Olympic year, being retained by the International Paralympic Committee to defend its controversial ban on Russia’s participation over doping claims. Partner Jonathan Taylor successfully defended the ban in the Swiss courts and at the Court of Arbitration for Sport.

The firm also acted for the head of the Jordan Football Federation, Prince Ali bin al-Hussein, in an unsuccessful bid to delay the FIFA presidential election in which he was a candidate until transparency measures could be secured.

Other sports-related work includes acting for a media client in a US$250 million dispute with the Football Association of Malaysia over a global media advisor appointment; and an international sports marketing agency in an HKIAC case concerning events in China and a contract governed by German law.

It is acting for a well-known telecoms client in two unrelated ICC cases, both concerning royalties under long-term patent licences, with a combined value in the billions of dollars. Another client is a Chinese chemicals company in a US$80 million claim over misuse of confidential information; and a British government department in a US$40 million technology dispute at the LCIA.

Pending energy related work includes a US$130 million dispute over a pumped storage plant; a US$50 million upstream dispute in eastern Europe; and a US$80 million dispute over tax charges imposed by a Central American regulator on two European energy clients.

The firm’s construction work includes LCIA cases worth US$560 million relating to four towers in Qatar and a joint venture dispute between German and Chinese partners.

Van Hooft has taken on a new role as honorary president of the Romanian International Arbitration Court.

Client comment

An in-house counsel at a major telecoms client says he had an “outstanding” experience with Bird & Bird after he brought in Hong Kong-based partner Richard Keady at short notice to take a limited role in a dispute. It soon became apparent that Keady should take the lead outside counsel role. “With Richard’s insight we were able to turn the matter around, ultimately winning over the entire three arbitrator panel.” Members of the team in London also come in for praise, with partner Garreth Wong performing “remarkably well” and Jane Mutimear providing fresh insight at short notice.

Sanofi’s global head of device patents, Marcus Schwarzhaupt, says the firm “did an excellent job” in exploiting the dynamics of arbitration to gain “strategic advantage”.

Stuart Miller, executive director at the International Tennis Federation, says the firm’s attention to detail and preparation are second to none. “We have the upper hand before we start,” he says.