Won a US$455 million award for Bayer in a biotechnology dispute
|Pending cases as counsel||10|
|Value of pending counsel work||US$8 billion|
|Current arbitrator appointments||2 (of which 0 is as sole or chair)|
|Lawyers sitting as arbitrator||1|
Milbank Tweed’s international arbitration practice grew from the white-shoe firm’s long-standing project finance prowess, which has expanded globally; it regularly wins awards for its work in Asia. In one of the firm’s first forays into international arbitration, name partner John McCloy acted for US oil companies on the arbitrations that followed the nationalisations in Libya. Since then, the firm has appeared regularly in commercial arbitrations – often on project matters – and has also acquired expertise in investment law work, including Energy Charter Treaty disputes.
These days, Washington, DC-based partner Michael Nolan leads the practice and receives enthusiastic plaudits from clients. He sits on the board of the American Arbitration Association and the panel of ICSID arbitrators.
In the US, the practice is focused in New York, Los Angeles and Washington, DC. More recently, it has set up in London with some lateral hires from DLA Piper. It also has a presence in Munich.
Who uses it?
On the commercial side, Milbank has advised Bayer Cropscience; Bloomberry Hotels and Resorts (in a dispute relating to a casino in the Philippines); US private equity firm Cerberus in an M&A dispute; Bermuda’s Asia Broadcast Satellite; Japan’s Chubu Electric Power Company; India’s Essar Group in various matters in the steel industry; and satellite television company DirecTV. It has also represented Atlantic LNG in a major gas-pricing arbitration and related court actions; and acts for various Asian banks in construction disputes arising from projects in Singapore and Indonesia.
On the investor-state front, Milbank has represented Brandes Investment Partners in a dispute against Venezuela arising out of the nationalisation of a telecoms company. It has also acted for German airport operator Fraport in an ICSID dispute with the Philippines, and for Mongolia on several high-stakes cases.
In 2015, the firm obtained a victory for its client Bayer Cropscience in a patent dispute with Dow Agrosciences relating to a herbicide-resistant gene used in genetically modified crops. A high-powered tribunal including the US’s William W Park found that Dow had infringed the underlying patents and ordered it to pay more than US$455 million.
Milbank helped Mongolia to defeat a US$1 billion claim over a windfall profit tax in 2011, when a tribunal chaired by Canada’s Marc Lalonde said the tax didn’t qualify as a treaty breach. Although the panel did uphold a less substantial claim, the Russian claimants decided to abandon the case all the same. The matter was included in the top 10 defence wins in a US publication’s arbitration scorecard. The firm also helped Mongolia settle an Energy Charter Treaty claim back in 2006.
Another eye-catching result came in 2010 when – along with various other firms, including K&L Gates and King & Spalding – it persuaded an ICSID ad hoc committee to annul an award blocking their client Fraport from pursuing a claim against the Philippines. The annulment was shortlisted for “Win of the Year” at the first GAR Awards in 2011. However, Fraport’s resubmitted claim for US$425 million was dismissed in 2014.
Canada’s Primero Mining retained the firm (together with McMillan in Canada) for a potential NAFTA claim against Mexico relating to a tax on revenue from a silver mine.
Milbank continued its work defending Mongolia in a US$500 million treaty claim by three Chinese entities at the Permanent Court of Arbitration. The case, which concerns a mining licence for one of the country’s largest iron ore deposits, could have important implications for how future tribunals construe early Chinese investment treaties. A hearing on jurisdiction and liability took place in September 2015.
Ziraat Bank, one of Turkey’s largest state-owned banks, retained the firm for a US$4 billion dispute at the LCIA concerning the ownership of the country’s leading telecoms company.
Milbank is also advising a security trustee in an ICC dispute worth US$250 million over a liquefied natural gas plant and a state-owned Qatari company in a US$200 million ICC claim related to a billion-dollar energy project in Qatar.
The Mongolian government’s treatment of the firm speaks volumes. Milbank lawyers were awarded official proclamations of gratitude by the Mongolian justice minister in 2011 at a surprise ceremony in Ulan Bator. One participant in the case told the team, “I prayed to the mountain every day that you will win for us. Now I thank the mountain every day that you have.”
Ian Rose of Brandes says “Milbank was extremely thorough in their research of relevant rulings and evidence to support our position in this matter.”
“What impressed me over so many years is the constant high level of quality and dedication in all aspects of Michael Nolan’s team to win this case and to do really everything to be successful,” says Fraport’s Peter Henkel: “We have received value for money.”