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GAR 100 - 9th Edition

B Cremades & Asociados

17 February 2016

Home to Spain’s best known arbitrator

People in Who’s Who Legal 2
Current arbitrator appointments 25 (of which 14 are as sole or chair)
Lawyers sitting as arbitrator 3

Bernardo Cremades followed an unusual career path, starting out as an arbitrator aged 26 then moving into advocacy work. He has been involved, as counsel or arbitrator, in more than 350 proceedings to date, and now focuses most of his time on arbitrator work. Among other roles, he is a former vice president of the LCIA and a current member of the International Council of Commercial Arbitration. He is a founding member of the Spanish Arbitration Club and was, for many years, a president of the Spanish Court of Arbitration.

In terms of his jurisprudential contribution, his name is on many of the most significant awards at ICSID, including the cases that developed the mechanism of the formation of an arbitration agreement under an investment treaty; the relationship between contract and treaty claims; the effect of illegality on investment protection; and the definition of an investment. A source in Spain says his “influence can be seen in the most important judicial decisions in the field”, and he had a significant influence on the drafting of the 1998 Spanish Arbitration Law.

In 2013, Cremades’s contribution was recognised at a conference in Lima, Peru, where he and French arbitrator Yves Derains were presented with a liber amicorum with 96 contributing authors. In the same year, the King of Spain also presented Cremades with the Grand Cross of the Order of San Raimundo de Peñafort – in recognition of his services to the administration of justice and the study of law. He has also received a medallion from the Arab Association for International Arbitration recognising him as an “ideal arbitrator in Euro-Arab arbitration”.

The firm that bears his name, founded in 1969, is home to around 10 lawyers devoted to international arbitration, many of whom also undertake client work. It has a reputation for being Spain’s unofficial university of arbitration: a GAR special report on Spain discovered that at least half of the leading Spanish names in the market had earned their stripes at B Cremades & Asociados.

While many of those colleagues have moved on to pastures new, partner David Cairns is now also a well-known figure in his own right. Educated in New Zealand, Cairns has worked in Madrid since 1999. In 2006, the researchers of the GAR “45 under 45” – a list of the leading younger practitioners in the field – picked Cairns for their list of the cream of the younger crop.

The founder’s son, Bernardo Cremades Jr, joined the firm in 2013 from Curtis Mallet-Prevost Colt & Mosle in New York. While at Curtis, he advised on several high-profile arbitrations, including helping to defend Venezuela in ICSID claims initiated by US oil company ConocoPhillips, Mexican cement group Cemex and US telecoms investor Brandes.

Track record

The firm reports two successes for Gas Natural in pricing arbitrations against another Spanish energy company. Several billion dollars were at stake in each case.

Another public win was for Spanish road builder Elsamex in an ICSID claim against Honduras concerning withheld payments for the reconstruction of a road destroyed by a hurricane. A sole arbitrator awarded the company US$8 million in 2012. Honduras later settled with the investor after abandoning its effort to have the award annulled.

The firm has worked wonders for another client, helping to set aside an award in a dispute between a major German textile brand and its Spanish licensee. The firm hadn’t been involved in the original arbitration but went on to represent the client in a second arbitral proceeding where damages were reduced by 60 per cent and a counterclaim for more than €243 million was upheld. They are now helping the client sue the arbitrators from the first proceeding for damages, and have obtained favourable court rulings at two instances; a Supreme Court appeal is pending.

Recent events

In April 2015, the firm helped a client win US$36 million in a commercial arbitration relating to the Bolivian cement industry, having seen off a counterclaim in an earlier phase of the case.

Cremades’ firm also brought home a €61 million win for Spanish shareholders in a multinational food group who brought a claim against its French parent company. Brazilian football club Santos FC has retained the firm for a dispute over the sale of Brazilian soccer star Neymar. The claim, which is against FC Barcelona, Neymar’s father and his family’s holding company, is being heard before the FIFA Players’ status committee.

Bernardo Cremades’s arbitrator practice remains as healthy as ever. He is sitting on a Miami-seated ICC panel that is hearing a billion-dollar dispute over a project to expand the Panama Canal. He’s also a co-arbitrator in an ICC case relating to the design of nuclear power plants in eastern Europe; part of an ICDR panel deciding a dispute over a sovereign wealth fund’s investment in a US bank; and chairing an UNCITRAL panel hearing a claim over the alleged expropriation of an Angolan mining concession.

At ICSID, he is sitting on an ad hoc committee that is reviewing a controversial US$250 million award against Romania. The case has caused something of a showdown between ICSID and the European Commission, which has concluded the award amounts to illegal state aid and has ordered Romania to refrain from paying.

In 2015, Cremades was also part of an ICSID panel that awarded US$65 million to Peru’s state hydrocarbons agency in a dispute over gas export royalties. He also found time to serve as an expert witness to the Renco Group in an UNCITRAL claim against Peru: the tribunal sided with his interpretation of the preliminary objections clause of the US-Peru trade promotion agreement.