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GAR 100 - 10th Edition

Luther

10 March 2017

Pursuing treaty claims against Germany, Spain and the Czech Republic

People in Who’s Who Legal 1
Pending cases as counsel 11
Value of pending counsel work US$8 billion
Treaty cases 3
Current arbitrator appointments 7 (of which 3 are as sole or chair)
Lawyers sitting as arbitrator 2

One of the founding fathers of the German Institution of Arbitration, Martin Luther, established this firm in Hamburg in 1950. Originally a boutique corporate firm, it began to receive international arbitration work after a merger with Arthur Andersen’s local legal division.

After the implosion of Arthur Andersen, Luther formed an association with Ernst & Young. The firm ended that relationship in 2006 but retained an international focus. Its reputation developed in investment arbitration after it became one of the first firms in the country to be instructed on a treaty claim (Inmaris v Ukraine).

Luther represented Swedish state-owned energy company Vattenfall in the first-ever ICSID case against Germany – a €1.6 billion claim under the Energy Charter Treaty that eventually settled. The same client instructed it for a second, ongoing, ICSID claim over Germany’s decision to phase out nuclear power in the wake of Japan’s Fukushima crisis. 

Hamburg-based Ulrich Theune established the arbitration practice but retired as a partner in 2012 to focus on arbitrator work, though he continues to support the firm on select cases. The practice is now chaired by Richard Happ in Hamburg, who has been at the forefront of much of the investment treaty work.

Jutta Wittler, in Cologne, specialises in international construction arbitration, while Christoph von Burgsdorff in Hamburg, who became a partner in 2012, focuses on corporate transactional and joint venture-related disputes. Karl von Hase in Düsseldorf specialises in Italian-German commercial disputes.

The firm is one of the founding members of the European Federation for Investment Law and Arbitration (EFILA), a Brussels-based lobby group set up to promote the benefits of investor-state dispute settlement and counter the negative press it has received in the past few years.

Who uses it?

A mixture of German and international clients, particularly from the energy and infrastructure sectors. Besides Vattenfall, it is acting for E.ON in one of the numerous Energy Charter Treaty claims against Spain relating to renewable energy reforms.  

The family is acting for German businessmen Stefan Wirtgen and Jürgen Wirtgen and their company JSW Solar in an ad hoc arbitration against the Czech Republic relating to a levy on electricity generated by solar power plants.

It has also acted for Greek petroleum company Mamidoil, Norway’s Statkraft, Italian engineering company Ansaldo Energia, Molinari and PreussenElektra.

Network

The core of the team is in Hamburg, with others in Cologne and Düsseldorf. But the wider firm has seven other German offices as well as outposts in Brussels, London, Luxembourg, Shanghai, Singapore and Yangon in Myanmar.

Track record

The firm helped Vattenfall settle its first ICSID claim against Germany in 2010. Luther has paired with Sweden’s Mannheimer Swartling to represent Vattenfall in its second ICSID case, reported to be worth €4.7 billion.

In 2012, Luther helped Hamburg sailing-tours group Inmaris win a €3 million ICSID claim against Ukraine over an impounded vessel.

The firm successfully represented a German automotive supplier in a VIAC arbitration against a Chinese joint venture; and achieved wins in two CIETAC arbitrations between a German electrical components supplier and a Chinese listed company in the solar sector.

Recent events

As part of a co-counsel team that included Allen & Overy and Bär & Karrer, Luther helped Italian client Ansaldo prevail in an ICC arbitration with Siemens over the use of heavy-duty gas turbine technology. The tribunal upheld Ansaldo’s right to use the technology under a winding-up agreement and rejected Siemens’ US$436 million claim. 

Mamidoil’s ICSID case against Albania came to an anticlimactic end. After a tribunal rejected the Greek company’s €45 million claim in 2015, annulment proceedings launched by the client were discontinued in the following year for non-payment of fees.

The firm is acting for a German utility in a €700 million ICC claim; and an energy supplier in another ICC case worth €500 million. It is advising a Scandinavian client in a potential claim against an eastern European state; and a German company in a sanctions-related dispute with Russia that could give rise to ICC proceedings.

It also advised a client in a DIS arbitration over an offshore windfarm project; and a Swiss-Austrian rail company in two consolidated SIAC cases.

Client comment

The head of a multinational who used lawyers from the firm’s Stuttgart and Shanghai offices was impressed by their professionalism and knowledge, as well as their level of preparation. The client, who wished to stay anonymous, also praised how the lawyers developed their relationship with the COO and his company.