Defending Yemen against a Chinese claimant at ICSID
|People in Who’s Who Legal||1|
|Pending cases as counsel||400+|
|Value of pending counsel work||US$45 billion+|
|Current arbitrator appointments||11 (of which 8 are as sole or chair)|
|Lawyers sitting as arbitrator||5|
Originally one of the City of London’s big shipping firms, Clyde & Co has grown beyond those beginnings into general corporate work.
The firm has disputes– particularly international ones – in its DNA. Clyde & Co has one of the largest dockets of commercial arbitration of any firm in the GAR 100 and has been described by the LCIA as its biggest single user “by a large margin”.
And while some of that is fast-paced shipping and commodities work, not all is. For example, a few years back, Clyde & Co turned up representing Yemen in one of the largest ICC arbitrations of the day (worth around US$10 billion). It also worked on one of the first large Russian oligarch cases (the TadAZ matter). In fact, about 40% of its arbitration activity is more complex work. The sheer volume of cases means it’s also in front of the London courts on arbitration matters a lot.
Over the years, the practice has added relevant expertise, absorbing teams from construction law boutique Shadbolt in 2010 and from UK firm Barlow Lyde & Gilbert a year later. In 2013, the firm formed a joint law venture with Singapore firm Clasis, enabling it to provide advice on foreign and Singapore law under one roof.
There’s still one eccentricity, however. In contrast to most firms in the GAR 100, Clyde & Co partners seldom perform advocacy – they feel that using barristers is more efficient.
The more important centres for arbitration for Clyde & Co are London, the Middle East (Dubai, Abu Dhabi, and Doha) and Asia (especially Singapore). The firm claims to have more lawyers registered with the Dubai International Financial Centre courts than any other.
The arbitration practice benefits from having one of the broadest networks of offices (46), and much of its work emanates from the farther reaches of that network.
As well as a string of offices across the US, it has bases in São Paulo, Dar es Salaam, Jakarta, Nantes and Tripoli. The firm has also opened up in Cape Town, Johannesburg and Newport Beach in California. In 2016, it launched in Düsseldorf and Miami.
Who uses it?
Governments, trading houses, energy companies and construction firms for the most part, often from remote places. The office in Brazil is bringing in some big clients, helped by the firm’s strong links with the London insurance market.
Some named clients are the governments of Yemen and Comoros and Kazakh state entity KazMunayGaz; commodities traders Glencore Xstrata, Inerco Trade, Holcim Trading and Norilsk Nickel; energy companies Total, African Petroleum, Labroy Offshore and Swala Energy; mining companies U&M and Astron; engineering firm Alstom; and telecoms major Nokia.
In 2013, the firm won a US$644 million award against Venezuelan state entity PDVSA on behalf of UAE-based oil services company Gulmar Offshore. The case was heard in London under maritime arbitration rules. PDVSA satisfied the award in the following year.
Clyde & Co has also had good results for Australian investors in the west African state of Gambia. Partner Maurice Kenton helped African Petroleum settle two ICSID cases against the state, leading to the return of the company’s exploration licences. He also won US$23 million for Carnegie Minerals (a unit of Astron) in an ICSID case in 2015 that is now in annulment proceedings.
The firm helped a subsidiary of Brazilian mining group U&M to win a series of LCIA awards worth US$54 million against Konkola Copper, a unit of London-listed Vedanta Resources, concerning assets in Zambia. The firm also fended off a challenge to the awards in the English courts and obtained a freezing order against Konkola’s assets.
The firm’s Singapore arm, Clyde & Co Clasis, obtained a US$19.5 million DIAC award for locally listed company Banyan Tree Holdings against an entity owned by the ruler of Dubai. The Singapore and Dubai offices then worked together to enforce the award successfully before the DIFC curts – the first enforcement of an award with no connection to the financial free zone.
In 2012, the firm secured US$200 million for Yemen’s ministry of oil and minerals in a dispute with a local oil firm.
There were a number of promotions to the partnership, including Sapna Jhangiani in Singapore, Emma Ager in London, David Meheut in Paris, Heather Nevin in Dubai, Alfred Thornton in Abu Dhabi and Ricardo Lewandowski (who now divides his time between London and the new office in Miami).
The firm pulled off a 90-day arbitration for client Alstom, winning an award against counterparty Mitsui Sumitomo and later securing its enforcement in the New York courts. The 90-day procedure, under a Brazilian law EPC contract, included questions on the governing law of the arbitration agreement, the nature of subrogation rights, and whether a non-signatory could be bound by the arbitration agreement.
The company is defending Yemen in an ICSID claim filed by Chinese contractor Beijing Urban Construction Group relating to an airport project. It is one of the few cases at ICSID involving a Chinese BIT.
There were more successes in the courts. In London, it won an extension of time to amend a six-year-old award where a mismatch between the name of the award creditor and the name of the contractual party had led to enforcement problems in China.
Meanwhile, in Singapore, it won the set-aside of an award on natural justice grounds after a SIAC tribunal issued the award on the basis of collateral contract arguments which were only raised 10 minutes before the end of a hearing.
A private equity client says Clyde & Co was “streets ahead” of the other counsel appointed to its case by co-claimants and defendants, and though “hellishly expensive”, proved willing to offer a success fee mechanism, which helped a lot in getting approval to pursue the claim.
Jonathan Hirst QC’s oral advocacy was “excellent”, while London partner Ben Knowles gave extremely good guidance on the importance of maintaining credibility.
An investment management client said it would recommend Knowles “unreservedly” and described him as “ a very professional, and, unusually, a very practical arbitration lawyer, who knows his way around the system”.
Another client says that partner Maurice Kenton quickly established a clear basis for the company’s position, giving it confidence in the arbitration.
A state-owned construction client describes Clyde & Co as a “great firm”, especially singling out Paris-based partner David Brown for his conscientiousness and calmness under pressure.