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GAR 100 - 10th Edition

Orrick Herrington & Sutcliffe

10 March 2017

Has achieved a string of successes for Guinea at ICSID

People in Who’s Who Legal 4
Pending cases as counsel 31
Value of pending counsel work US$8.7 billion
Treaty cases 6
Current arbitrator appointments 43 (of which 18 are as sole or chair)
Lawyers sitting as arbitrator 8

Orrick’s international arbitration group began on the West Coast of the US, but only gained momentum during the 2000s when it branched into Europe.

In 2005, the firm picked up several members of the highly respected arbitration group at now-defunct firm Coudert Brothers, including some partners in London and Moscow, and the venerable Laurie Craig in Paris. A year later, it absorbed Rambaud Martel, one of Paris’s elite M&A boutiques, adding serious credibility in France. And in Germany it absorbed Hölters & Elsing – home to Siegfried Elsing, one of Germany’s pre-eminent practitioners and arbitrators. Elsing now co-leads Orrick’s international arbitration group with Robert Sills in New York.

The firm has continued to make impressive lateral hires, including Laurent Jaeger, formerly of Latham & Watkins’ Paris office, in 2009, and Charles Kaplan in 2013, who had co-headed the international arbitration practice at Herbert Smith Freehills in Paris.

Network

The key offices for arbitration are Paris, London, Düsseldorf, New York, Hong Kong and Tokyo, with other members of the group based in San Francisco (where the firm is headquartered) and Silicon Valley. The group also has a presence in Geneva thanks to the hire of a team from Akin Gump in 2015. The wider firm has 25 offices across Europe, the US and Asia and an affiliated office in Abidjan, Ivory Coast.

Who uses it?

The firm’s strong Parisian arm counts several French-speaking countries among its clients, including Gabon and Guinea (which has been using it on a number of ICSID matters). It is also acting for mining investors bringing ICSID claims against Mauritania and Mali, and for investors in one of the many Energy Charter Treaty claims filed against Spain over its solar power reforms.

On the commercial side, it defended a subsidiary of Dow Chemical in a patent dispute with Germany’s Bayer. Norwegian telecoms company Telenor has repeatedly instructed Orrick since 2006 in a series of disputes stemming from its turbulent business relationship with Russia’s Alfa Group. Engie, Ford Motors, Four Seasons Resorts, Bosch, Total and SGS are also clients.

Track record

The cases for Telenor saw Orrick winning at every step. At the outset, the firm obtained an anti-suit injunction in a New York court allowing an arbitration over a joint investment in Ukrainian telecoms company Kyivstar to go ahead. It then won the arbitration, confirmed the award in New York, and obtained contempt of court rulings and large fines against the opponent, Alfa Group, for non-compliance with the award.

Later, Telenor used Orrick again for an UNCITRAL arbitration against Alfa over some joint interests in Russia’s VimpelCom, which again went in Telenor’s favour. The parties settled in 2010, cancelling all outstanding actions, and created a new joint venture in Amsterdam. But the saga didn’t end there: they entered arbitration again later, with Orrick still behind Telenor in a new dispute over pre-emptive rights that was settled after hearings in 2012.

There have been some impressive defence wins on behalf of Guinea at ICSID. In 2014, it defeated a soft drinks producer’s US$120 million claim by showing there was no evidence that the claimant was under foreign control when it was established. In the following year, the firm knocked out a US$91 million claim by a real estate company, showing that the claimant didn’t qualify as a “foreign investor”.

In a third case in 2016, it helped Guinea knock out the bulk of a €160 million ICSID claim by port operator Getma at the jurisdictional stage (the investor won only €450,000). It has also helped the West African state to annul a €38.5 million OHADA award obtained by Getma in a parallel contract case and prevented it from being enforced in the US courts. 

Orrick helped a financial services firm, Amaprop, win more than US$48 million in an ICDR case against an Indian joint venture partner. It then coordinated enforcement efforts in the US, UK and India before the case was settled.

While at his former firm, Jaeger helped French LNG containment company Gaztransport & Technigaz defeat a €300 million claim by shipbuilder Chantiers de l’Atlantique. He has since helped to uphold the award against a court challenge.

Recent events

Besides the successes for Guinea against Getma mentioned above, the firm continues to work alongside DLA Piper defending the West African state in a US$5 billion ICSID claim by companies linked to embattled Israeli diamond tycoon Beny Steinmetz. The closely watched case concerns the revocation of mining licences after a government probe found they had been procured through bribery. The Steinmetz companies, who deny all wrongdoing and say the probe was politically motivated, recently failed in a bid to disqualify all three members of the ICSID panel.

It helped Jersey-based mining company Randgold Resources win a largely favourable ICSID award in a tax dispute with Mali.

In France, Orrick was part of a co-counsel team that persuaded the Court of Cassation to uphold the annulment of a €403 million award in favour of controversial businessman Bernard Tapie against French state entity CDR on the grounds that it was procured by fraud.

The firm represented an Engie subsidiary in a landmark case that has clarified the power of France’s supreme administrative court to set aside awards arising from public works contracts. Orrick persuaded the court to annul part of an ICC award that dismissed one of its client’s claims against a consortium including Tecnimont and Saipem. 

On behalf of Toshiba, it won a stay of litigation in California brought by a US semiconductor company in favour of an ICC arbitration in Tokyo. After Toshiba filed significant counterclaims, the case eventually settled.

It helped Total successfully conclude a dispute with Esso, Shell and BP over the validity of decisions taken by the board of a pipeline operator joint venture. The firm also helped a European car importer settle a €40 million dispute with Skoda being heard in Vienna; and represented Enel in an ICC arbitration against a Sonatrach joint venture.   

Its pending work includes acting for a tobacco client in a US$500 million ICC arbitration under Mexican law; and a Turkish contractor in a US$182 million ICC case seated in Doha relating to the construction of airport passenger terminal.

It is also acting for iron ore mining group Bumi in an ICSID case against Mauritania; and is co-counselling with King & Spalding in an Energy Charter Treaty claim against Italy relating to renewable energy reforms.

Charles Allen joined the firm as head of the Hong Kong commercial litigation and arbitration practice from Sidley Austin. Of counsel Janie Wong left the Hong Kong office for Dechert. In Düsseldorf, partner Benedikt Burger left for Allen & Overy.

Client comment

A client for a contractual dispute praises the “impressive, young team that is appropriately aggressive, yet very focused on results”. He says Vanessa Liborio and Rena Scott in Geneva are “formidable”.