Defending Germany in a closely watched ICSID case over nuclear power
|People in Who’s Who Legal||1|
|Pending cases as counsel||25|
|Value of pending counsel work||US$14 billion+|
|Current arbitrator appointments||12 (of which 7 are as sole or chair)|
|Lawyers sitting as arbitrator||5|
McDermott was working on international arbitrations as far back as the 1990s, representing French, Korean and US clients at the ICC. But attempts to make the transition from the IP field (where it’s very successful) into more of a mainstream international arbitration brand haven’t always run smoothly. A bolt-on team in London seemed poised for success, then splintered, and the practice fell out of the GAR 100 in 2011.
Since then, the firm has taken steps to return to the main arena with some solid partner hires that have restored know-how and credibility. In 2012, it welcomed English barrister Jacob Grierson in Paris (formerly of Jones Day and an authority on the new ICC rules). In the same year, it recruited a duo from K&L Gates who specialise in investment arbitration: Sabine Konrad (who is based in Frankfurt and is one of the German government’s nominees to the ICSID panel of arbitrators); and Lisa Richman in Washington, DC.
The New York-based head of the practice, Ted Howes, left for Mayer Brown in 2015 and the firm has yet to appoint a replacement practice head.
The main offices for arbitration are New York, DC (and to a lesser extent, Chicago, Miami and Boston), Paris and Frankfurt. There are also partners with international arbitration experience stationed in Düsseldorf and Rome. The firm has an affiliated office in Shanghai, MWE China Law Offices, led by John Huang.
Who uses it?
One high-profile client is the German government in a high-profile ICSID case brought by Sweden’s Vattenfall over a decision to hasten the phase-out of nuclear energy. The case is reportedly worth €4.7 billion. Taiwan’s Chinese Petroleum Company, German airport operator Fraport and Sweden’s Lundin Petroleum have also been ICSID clients.
A lot of clients are from IP-rich fields – such as life sciences and pharmaceuticals.
Some names the firm has been associated with include Honeywell, Blackwater Security Consulting, private equity funds Patriarch Partners and Ewing Management Group, German electrical-goods maker Schwabe, and German chemical company Evonik Degussa.
In 2011, the firm helped Bionol Clearfield obtain a US$230 million award against Getty Petroleum Marketing in a dispute over an ethanol plant in Pennsylvania. The award included US$47 million in damages and over three times as much in future damages.
A year later, the firm helped Canadian dairy company Aliments Ultima favourably settle with its French franchisor, ending the ICC arbitration between the parties.
In China, the firm succeeded in enforcing two SIAC awards before the Wuxi courts in 2013 – no mean feat. It also gained the upper hand in a dispute between a US medicine company and its Taiwanese joint venture. The Taiwanese side handed over control of a Chinese pharmaceutical company to the US party, following a multi-pronged assault that saw McDermott Will & Emery obtaining ex parte attachment orders over personal residences in Taipei.
At ICSID, the firm helped Swedish oil company Lundin win a US$25 million award against Tunisia in 2015 in a dispute over tax. It has also helped two German eco-tourism investors win a US$4 million ICSID award against Costa Rica in 2012, and helped Poland defeat a claim in 2014.
Lisa Richman helped Italian waste management company ASA International settle its investment treaty claim against Egypt.
Along with its work on the Vattenfall case, the firm continues to advise four German banks in an ICSID claim against Spain concerning reforms to the country’s renewable energy regime. It is also acting in various HKIAC matters and arbitrations involving major oil companies.
Grierson was appointed to the executive board of the International Academy for Arbitration Law in Paris.
For the tenth year, Konrad organised the Frankfurt Investment Arbitration Moot, which is famous for setting a creative problem based on real historical events.
Esa Kekkonen, counsel at Finnish forest industry company Metsä Group, hired McDermott Will & Emery for a case that eventually settled and says the team’s desire to “understand the business case thoroughly” was critical to achieving that end.
Kevin Norman of German chemicals group Evonik Degussa says that McDermott lawyers managed to negotiate a settlement on the eve of arbitration that made his business “extremely happy”.
Another client describes Sabine Konrad and the group as a whole as “professional, team-oriented and efficient. Their legal advice is absolutely cutting edge.”