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GAR 100 - 10th Edition

Wilmer Cutler Pickering Hale and Dorr

10 March 2017

Gary Born continued his work as president of SIAC, as the firm settled major gas price reviews and defended Iraqi Kurdistan

People in Who’s Who Legal 7
Pending cases as counsel 72
Value of pending counsel work US$170.5 billion
Treaty cases 21
Current arbitrator appointments 58 (of which 23 are sole or chair)
Lawyers sitting as arbitrator 6

The firm’s international arbitration group developed from legacy firm Wilmer Cutler and Pickering’s emphasis on international matters. In the 1980s, famous name partner Lloyd Cutler agreed that he and colleagues should represent Greenpeace in arbitration with France over the bombing of the organisation’s flagship, the Rainbow Warrior. Ten years later, the firm went on to represent Eritrea against Yemen in an arbitration in The Hague.

In both matters, Gary Born, then an up-and-coming member of the firm and former clerk to US Supreme Court Justice William Rehnquist, led the work – beginning a long focus on international arbitration (on which he had already written learned books).

The group formed in London, fuelled by commercial work, most notably a pair of sizeable ICC instructions from Deutsche Telekom. It became home to a mix of common and civil law specialists and was one of the first in London to have a civil-law trained partner (Austrian Franz Schwarz. Today, it has one of the better foreign-lawyer and intern programmes, which encourages this mix. Its advocacy style reflects a blend of the continental and US traditions.

Later openings came in the United States and Germany. By now, the firm was Wilmer Cutler Pickering Hale and Dorr, having merged with US firm Hale and Dorr in 2004.

The original team has remained intact for an unusually long time compared to some of its competitors, though partner Wendy Miles left in 2014 after 15 years with the group.

Born, as chair of the group, is still a key figure – though some of his attention is these days directed towards the Singapore International Arbitration Centre (SIAC), whose presidency he assumed in 2015.

The day-to-day leadership of the practice has now passed to two vice chairs: Schwarz and Rachael Kent. Other key names include John Trenor, Steven Finizio, Duncan Speller and Maxi Scherer.

Network

The key offices for international arbitration are London, New York, Frankfurt and Washington DC, with others in Berlin, Palo Alto and Boston.

Who uses it?

WilmerHale is a practice that has a fair few regular clients – and a policy of not confirming them. The group tends to focus on higher-value work, which in recent years has meant plenty of price-reopener energy disputes. Lately it’s also had lot of work relating to pharmaceuticals, IP, financial services and telecoms.

Clients of public record include Volkswagen (in a multibillion-dollar dispute with Suzuki), Repsol, Switzerland’s Swatch, Deutsche Telekom and Austrian technology group Andritz.

In the investment law area (in which it is not so famous), the practice is acting for US pharmaceutical group Merck Sharp & Dohme in a denial of justice claim against Ecuador; and more recently for Greek construction company J&P Avax in an ICSID claim against Lebanon (relating to a €360 million power plant project near Tripoli).

It’s also known for taking on non-traditional, non-commercial cases, for example representing the Sudan People’s Liberation Movement (a former rebel force) in an arbitration with the Sudanese government over the boundaries of an oil-rich region of the country, Abyei. The dispute helped determine who could participate in a referendum on Abyei’s future and thus paved the way for South Sudan’s independence, although it sadly has not brought peace to the region.

Another prominent client is the Kurdistan regional government of Iraq, which it is defending in a mammoth LCIA case brought by a UAE consortium over gas fields.

Track record

The firm had a series of wins for Deutsche Telekom in the Vivendi matter mentioned above. Although the saga eventually ended in settlement, for the 10 years while it was going on, the German client was regarded as firmly ahead.

The firm pulled off a similar trick for France Télécom in the early 2000s, with Freshfields as opposing counsel.

After the result was handed down in the Abyei arbitration, the firm’s clients reportedly broke into song, they were so pleased. Luka Biong Deng, a senior official in the South’s ruling party, later said the firm’s work was “extraordinary in every way”.

In 2014, the firm won a US$450 million award for Swiss watchmaker Swatch in a dispute with US jeweller Tiffany & Co before the Netherlands Arbitration Institute. The tribunal also awarded Swatch almost US$10 million in costs. However, the award has since been set aside in the Dutch courts.

In the following year, the firm helped Austria’s Andritz receive €40 million to settle an ICC arbitration with the Finnish-Chilean owners of Uruguay’s largest pulp mill project.

Recent events

In early 2017, WilmerHale promoted solicitor advocate Charlie Caher to the partnership in London. The firm also promoted Latin American disputes specialist Claudio Salas to special counsel, while eight other arbitration counsel were made up in London, Frankfurt and New York.

Co-counselling with Three Crowns, Gary Born helped a group of South African mining investors win a landmark denial of justice claim against Lesotho. The claim, under an obscure investment protocol between member states of the Southern African Development Community, concerned Lesotho’s role in the shuttering of a regional court. It has cleared the way for a new US$200 million UNCITRAL claim against Lesotho (in which the firm is not involved).

WilmerHale’s client Volkswagen settled a five-year partnership dispute with Suzuki Motor Corporation in early 2016, shortly after an ICC tribunal ordered the German carmaker to sell its US$3.8 billion stake in the Japanese company back to Suzuki. Suzuki agreed to pay “a certain amount of money” in exchange for the withdrawal of Volkswagen’s claims.

The firm continued to defend Iraqi Kurdistan against an LCIA claim by the UAE’s Dana Gas and Crescent Petroleum. After winning a US$1.98 billion award in 2015, the claimants obtained a further award worth US$121 million against WilmerHale’s client in early 2017, also defeating counterclaims by the government reportedly worth several billion dollars.

A team led by John Trenor in Washington, DC secured favourable settlements in two multi-billion gas price reviews,

As well as picking up a new ICSID instruction from J&P Avax against Lebanon, the firm is advising clients in the insurance and real estate sectors in investment disputes with states in Central and Eastern Europe; and a financial services company on a potential treaty claim against a Latin American state.

It continues to represent South Sudan in boundary disputes with Sudan and is advising the Ethiopian ministry of mines in a concession dispute. It has also been representing a Central Asian government in a SIAC case over an infrastructure project; and a large Trinidadian chemicals producer in an UNCITRAL case seated in DC.

Since taking over the presidency of SIAC from Michael Pryles, Born has overseen a series of initiatives that came to fruition in 2016, including the release of the centre’s sixth set of rules and new investment arbitration rules for the centre.

In 2016, Born became co-chair of a task force supporting Somalia’s accession to the New York Convention alongside London-based senior associate Jonathan Lim, who was also chosen to help lead the Asia Pacific Forum for International Arbitration.

Born also garnered headlines as the dissenting arbitrator on the ICSID panel that rejected Philip Morris’s controversial ICSID claim against Uruguay relating to restrictions on cigarette packaging.

Away from arbitration, the firm has been engaged in pro bono work through the Media Legal Defence Initiative, an NGO supporting freedom of expression. In this capacity, it’s represented journalists and news organisations from Azerbaijan, Burkina Faso and Hungary in human rights claims against their governments.

Client comment

The in-house counsel to a major state-owned gas company says the firm “always knows what to do and how to do it better than others.” John Trenor has “a brain like a computer” and Steven Finizio is one of the best legal advisers the company has ever worked with, he says.

Alan Crain, chief legal and governance officer at oilfield servicer Baker Hughes, calls the firm “truly masterful.”

“The Wilmer team exercised excellent judgement throughout the proceedings with respect to not calling certain fact and expert witnesses, reducing the planned cross examinations and adjusting to changes in adverse counsel’s assertions,” he says.

James Heavner, director of litigation at financial services group The Hartford, says WilmerHale “simply out-lawyered the other side” when they were retained in a dispute. “The Wilmer team thought the case through, from start to finish, left no exposed flanks, and was prepared for every argument the other side could muster.”