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GAR 100 - 9th Edition

Clifford Chance

18 February 2016

One of its practice heads took silk and it settled the controversial “e-borders” case for client Raytheon

People in Who’s Who Legal 8
Pending cases as counsel 110
Value of pending counsel work US$42.2 billion
Treaty cases 12
Current arbitrator appointments 79 (of which 46 are
as sole or chair)
Lawyers sitting as arbitrator 27

Clifford Chance was one of the first Anglo-Saxon law firms to take international arbitration seriously. In the mid-1980s, it decided to create a separate department at around the same time as Freshfields (rumour has it that partners at the two firms conspired a bit over their projects so that neither looked like they were “moving first”).

The new department was led by John Beechey, who went on to become chair of the ICC International Court of Arbitration from 2009 to 2015. Over 15 years, the group became a major international arbitration brand – strong in London, New York and Paris. It also became something of a training ground for lawyers seeking to get a start in the field. But a tough financial crisis and the departure of Beechey and another key partner, Jason Fry, for the ICC left the group looking a little lean.

The reinvigorated group is now co-led by Audley Sheppard (who became a QC in 2015) and Fry, who rejoined the Paris office in 2012 after five years with the ICC. Fry’s deputy at the ICC, Simon Greenberg, also joined in Paris and was rapidly promoted to partner.

Other partners to know are Rob Lambert, Alex Panayides, Marie Berard, Ignacio Suárez Anzorena, Romesh Weeramantry, Sam Luttrell and newly arrived Jessica Gladstone.

Areas of group expertise include the Energy Charter Treaty and its relationship with EU law. It was one of the first firm’s to fight cases on this.

Network

Clifford Chance operates from 26 countries. For international arbitration, the most important offices are London, Paris, Hong Kong and Singapore, with other practitioners stationed in Amsterdam, Düsseldorf, Frankfurt, Munich, Madrid, Milan, Rome, Moscow, Dubai, Perth and Sydney.

Suárez Anzorena handles investment treaty arbitration relating to Latin America from Washington, DC. He also left the firm for a while, joining Chadbourne Parke, but was back in 2012.

In Singapore, the firm formed an alliance with local boutique Cavanagh Law in 2012 and was one of the first international law firms to obtain approval to open an office in Seoul. The practice’s Asia-Pacific reach was strengthened in 2013 with the hire of investment treaty specialist Romesh Weeramantry in Hong Kong, who joined as a foreign legal consultant. and commercial arbitration practitioner Sam Luttrell in Perth.

Greenberg, who is an Australian, also has an interest in the Asia Pacific region.

Who uses it?

The wider firm has a great name in banking and finance, leading to some exciting banking-related arbitrations involving institutions such as Crédit Agricole, Standard Chartered Bank and Standard Bank of South Africa. Otherwise, it’s a pretty mixed bag. Clients include Shell, Total, Eni, E.ON and Sinopec the US defence contractor Raytheon Systems,Spanish infrastructure groups Abengoa and Abertis and the French Football Federation. The vice president of FIFA, former French football star Michel Platini, recently turned to the firm.

Clients in investment treaty work have included EDF (in a couple of ICSID cases against Argentina in which it replaced a US firm) and Italian power company Enel in a claim against El Salvador. It is also acting for a development company against Papua New Guinea.

A rare state client is São Tomé and Príncipe, as respondent in a case filed by Malta over the detention of an oil tanker in 2013 on smuggling charges. The US$15 million claim is being heard under the UN Convention on the Law of the Sea.

Track record

It’s been a good few years. In 2013, the team won a US$1.4 billion partial award for Shell and its consortium partners in an arbitration against Nigeria’s National Petroleum Corporation. The firm is now fighting to lift a Nigerian court injunction to allow Shell to proceed with the arbitration, in which it seeks more than US$3 billion.

That year the firm also secured an award of over US$100 million for French bank BNP Paribas in its long-running dispute with Basic Element Group, owned by Russian oligarch Oleg Deripaska.

In 2014 it won a £224 million LCIA award against the UK government for US defence contractor Raytheon Systems, arising from a dispute over an failed plan to implement an electronic border control system.

On the investment treaty side it won US$45 million for Abengoa in an ICSID claim against Mexico and settled Enel Green Power’s dispute with El Salvador, securing a US$280 million payout for the claimant.

The German disputes team managed to set aside a €220 million award from the German Arbitration Institute (DIS) – one of the few times that a DIS award of that magnitude has been overturned.

Recent events

The e-borders award in favour of Raytheon was controversially overturned by the UK courts on the basis of the irregularity and the failure of the arbitrators to consider certain issues. Guided by Clifford Chance, Raytheon subsequently settled with the UK for £150 million.

The firm appeared for Malaysian conglomerate Astro in the Hong Kong branch of its attempt to enforce a US$130 million SIAC award against a unit of Indonesia’s Lippo Group. It won enforcement in Hong Kong despite the award having been set aside at the seat in a high-profile Singapore Court of Appeal decision. It also won a garnishee order for US$44 million against Lippo assets in Hong Kong.

In Russia, it won a victory for client Sberbank before the constitutional court, which overturned the Supreme Arbitrazh Court’s refusal to enforce an arbitral award in the client’s favour.

New work that came in included an ICSID claim against Spain under the Energy Charter Treaty over reforms to the state’s renewables sector. It also replaced Quinn Emanuel Urquhart & Sullivan as counsel to claimant Churchill Mining in two ICSID claims against Indonesia estimated at around US$1 billion and, it reports, Arnold & Porter in EDF’s long-running US$1.2 billion claim against Argentina over measures adopted following the 2001 financial crisis.

In London, the firm hired Jessica Gladstone as a partner in its public international law practice. Gladstone joined from Debevoise & Plimpton where she has been involved in high-profile disputes alongside Lord Goldsmith QC, including British Caribbean Bank v Belize (winner of a GAR award) and a major inter-state dispute between Singapore and Malaysia.

In Singapore, the firm promoted Kabir Singh to partner. In Germany, Frankfurt partner Fabian von Schlabrendorff and Düsseldorf partner and Thomas Weimann left to set up their own practices. Weimann has since set up Herbert Smith Freehills’ new arbitration practice in the city.

In Beijing, the firm lost counsel Yu Bing, while in Washington, DC associate Sara Marzal has joined ICSID as legal counsel.

Practice co-head Audley Sheppard boosted his reputation with his appointment as QC, one of only five solicitor advocates to take silk in 2015. He was also appointed to the board of the LCIA and ranked in the top five most-regarded arbitration practitioners in GAR’s sister publication Who’s Who Legal. He was also appointed to the board of the LCIA.

Greenberg was an emergency arbitrator in a high-profile Formula 1-related case brought against Swiss team Sauber by Dutch racing driver Giedo van der Garde, who said he had been selected as part of its team for the Australian Grand Prix then dumped.

Greenberg granted an injunction to restrain the team from taking any action to deprive him of an opportunity to compete pending final determination of the dispute. Arbitrator Todd Wetmore later granted a final injunction along the same lines – but Sauber settled with the driver who agreed at the eleventh hour that he should not race.

Michel Platini lost an appeal against his suspension by FIFA, which he complains will prevent him standing for election as Sepp Blatter’s successor. He was represented by partner Thibaud d’Alès in Paris.

Client comment

Churchill Mining brought the firm in to replace Quinn Emanuel on its US$1 billion claim against Indonesia ahead of a lengthy 10-day hearing in Singapore. Nicholas Smith of Churchill says it was vital that its new counsel had a “depth of experience in the areas of international mining and exploration projects, financing and contested M&A work” as well as proven expertise in general advocacy –which Clifford Chance could provide. As the client mainly operates out of western Australia, the firm’s large Perth office also gave it an edge. Churchill is satisfied with the choice – “all the demanding preparatory work was done swiftly, efficiently and – importantly – on time and on budget.”

Smith singles out Audley Sheppard QC, Sam Luttrell and Montse Ferrer for particular praise Sheppard has an “advocacy style very suited to the international arbitration medium, and he certainly appeared to enjoy the respect of the tribunal.” Luttrell’s M&A experience is combined with “very good advocacy skills, a formidable work ethic and he is excellent at returning calls”. Smith says Ferrer is “simply one of the best and most focused lawyers I have encountered – her capacity to remember with absolute precision a particular paragraph in a particular document out of a couple of thousand was quite remarkable.”

The head of dispute resolution at a major international oil company which retained the firm for disputes relating to drilling in Iraq praises the firm’s responsiveness and the quality of its advice, which is “measured, relevant and fully substantiated by authority” and prioritises business sense and commercial objective over “esoteric legal argument”.

“I see CC as an extension of my in-house team and the collaboration levels really help to develop the best argument, strategy and case theory,” the client says.

He describes partner Alex Panayides as “on the ball; whether he’s on a plane or in a meeting half way around the world – a response to your question is guaranteed.” The client also praises senior associate Paul Coates, whose “measured and calming approach” will make him “a worthy CC partner someday soon”.