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GAR 100 - 10th Edition

McMillan

06 March 2017

A go-to for Canadian mining companies in investment disputes

People in Who’s Who Legal 1
Pending cases as counsel 8
Value of pending counsel work US$550 million
Treaty cases 2
Current arbitrator appointments 2 (of which 2 are as sole or chair)
Lawyers sitting as arbitrator 1

McMillan’s international arbitration practice developed around leading Canadian arbitrators J William Rowley QC and Robert Wisner. Rowley, who chairs GAR’s editorial board, retired from the partnership in 2009, and cut his remaining ties with the firm in 2014.

Wisner returned to the firm’s Toronto office in 2007 after many years at investment arbitration boutique Appleton & Associates in Washington, DC. He now co-chairs the international arbitration practice from Toronto with partner Brad Hanna.

Other names to know include Toronto partners Scott Maidment and Markus Koehnen, and Montreal partner Éric Vallières, who specialises in aviation disputes. Max Mendelsohn from the Montreal office regularly serves as arbitrator.

Who uses it?

The group regularly acts for Canadian and international mining companies in investment disputes.

Clients that can be named include Glencore, Copper Mesa, Brilliant Resources, aircraft maintenance company Kelowna Flightcraft, automotive supplier Magna and the International Air Transport Association. The firm has acted for a consortium of insurers in cases arising out of 9/11.

Track record

McMillan has had a fair amount of success in getting disputes thrown out early or settled. In one example, Wisner managed to get a US$12 million ICC claim over the sale and purchase of avionics equipment dismissed at the jurisdictional stage.

Broadly, the firm says it has helped mining, petrochemical and automotive clients settle ICC claims totalling US$100 million, by negotiating new contractual terms that would preserve ongoing business relationships.

In 2015, it helped Brilliant Resources settle an US$80 million ICC claim against Equatorial Guinea concerning an exploration services agreement. The client dropped the claim in return for a cash payment of US$31.5 million.

Wins at the merits stage include an ICC arbitration in which the firm defended an international airline organisation; and an ad hoc claim relating to satellites on behalf of an insurance syndicate.

The firm has also scored significant victories in enforcement proceedings. For instance, it helped the US’s Cargill defend a US$77 million award against Mexico before Canada’s Supreme Court in 2012, defeating arguments by all three NAFTA states that the arbitrators exceeded their jurisdiction.

It also defended an ICC award in the landmark case Corporacion Transnacional v STET, which established that a deferential standard of review should be applied to international arbitral awards in Canada.

Recent events

The firm helped Vancouver-based mining company Copper Mesa win US$24 million in an investment treaty claim against Ecuador over the expropriation of two copper reserves – though the tribunal reduced the damages in view of violence inflicted on anti-mining protesters by a security force hired by the claimant. 

A treaty claim against Barbados didn’t go the client’s way, however. A tribunal at the Permanent Court of Arbitration in The Hague dismissed the US$26 million claim by Canadian businessman Peter Allard, rejecting arguments that Barbados had failed to take environmental measures to protect his investment in a nature sanctuary. 

McMillan paired up with another GAR 100 firm, Milbank Tweed Hadley & McCloy, to advise Canada’s Primero Mining on a potential NAFTA claim against Mexico relating to a tax on revenues from a silver mine.

Before an Ontario court, Wisner helped Turkish construction company Entes to enforce a US$23 million UNCITRAL award against Kyrgyzstan – trouncing the state’s arguments that enforcement would be against public policy because of an undisclosed conflict of interests on the part of the state’s external counsel in the arbitration.