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GAR 100 - 9th Edition

Bofill Mir & Álvarez Jana Abogados

17 February 2016

A win against Bolivia at ICSID cements the Chilean firm’s reputation

People in Who’s Who Legal 1
Pending cases as counsel 14
Value of pending counsel work US$780 million
Treaty cases 2
Current arbitrator appointments 3 (of which 0 is
as sole or chair)
Lawyers sitting as arbitrator 1

Chile’s most active player in investment treaty arbitration, Bofill Mir & Álvarez Jana largely owes its reputation in the field to Harvard-educated partner Andrés Jana, a former government lawyer who has helped to negotiate several of Chile’s free trade agreements. He is a member of the ICSID panel of arbitrators and the London Court of International Arbitration.

Other names to know are partner Rodrigo Gil, who has practised with Arnold & Porter, and Dutch-born counsel Johanna Klein Kranenberg. She has successfully defended Chile in Dutch court litigation involving sovereign immunity issues, and also advised Eritrea in a successful claim for war damages before the Eritrea-Ethiopia Claims Commission in The Hague.

In 2013, the firm added Russian and German educated Elina Mereminskaya as an associate, who brought five years’ experience as special counsel at Chile’s main arbitration centre, CAM Santiago.

Who uses it?

Chilean and international companies often turn to the firm to advise in arbitrations at CAM Santiago as well as foreign-seated cases with a Chilean-law component. The firm’s international clients have included AES, Bechtel, Domino’s Pizza, Japan’s Mitsui and Lumina, Canadian mining companies New Gold and Quadra, Colombian confectioner Colombina and Brazilian engineering company Alusa.

Clients in Chile include state-owned copper company Codelco, Antofagasta Minerals, ENAP Refinerías, pharmaceuticals distributor Pentafarma and the National Association of Professional Soccer.

The government of Chile, Chilean mining company Quiborax and Swiss airport services company Flughafen Zurich have all turned to the firm for ICSID matters.

Track record

At ICSID, the firm’s track record is excellent. Most recently, it obtained a US$48 million award for Quiborax in September 2015, in a nine-year case against Bolivia over the cancellation of a mining concession. Bolivia is now seeking to have the award annulled.

In the previous year, it also helped Flughafen Zurich and its Chilean partner win around US$19 million plus interest in an ICSID claim against Venezuela over a Caribbean island airport concession. Notably, the tribunal made a rare finding of denial of justice against the state.

Another victory at ICSID came in 2007, when the practice helped the government of Chile defeat a claim by a Spanish investor over fishing rights. The tribunal threw out the case on jurisdictional grounds because the Spain–Chile bilateral investment treaty was not in force when the investor was first denied his licence. That decision was upheld by an annulment committee in 2010. For both sets of proceedings, Bofill Mir was co-counsel with Arnold & Porter (where Jana was a foreign associate in the 1990s).

The firm has also had a hand in important arbitration-related Chilean court precedents. In 2014, Bofill Mir helped the European Southern Observatory, a Munich-based astronomical research body, defeat a set-aside petition before the Santiago Court of Appeal, a decision that dispelled doubts as to whether foreign lawyers were permitted to appear in international cases seated in Chile.

In 2013, the firm persuaded the country’s Supreme Court to dismiss an appeal against the recognition of an ICC award in favour of its client, Domino’s Pizza, establishing that such a recourse was inadmissible.

Recent events

Counsel Rodrigo Quintana was promoted to partner after four years at the firm. He is also an adviser to the State Defence Board, which represents the interests of Chile against local claims against it, and has previously worked for the Organization of American States. Rodrigo Gil was elected chair of the civil law department at the University of Chile.

Away from his arbitration work, Jana is among the legal advisers to Chile in its dispute with Bolivia at the International Court of Justice. The court ruled in September 2015 that it has jurisdiction to decide whether Chile has an obligation to negotiate with Bolivia over sovereign access to the Pacific, but has yet to decide on the merits. Jana has previously advised Chile in a maritime boundary dispute with Peru at the ICJ.

Client comment

The European Southern Observatory praises Jana and Gil as “very skilled and dedicated professionals” whose “precise and convincing” arguments were fully adopted by the Santiago Court of Appeal in the case mentioned above.