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GAR 100 - 10th Edition

Gibson Dunn & Crutcher

09 March 2017

Bringing the first known BIT claims against Iraq and Canada

People in Who’s Who Legal 2
Pending cases as counsel 26
Value of pending counsel work US$20 billion+
Treaty cases 5
Current arbitrator appointments 16 (of which 8 are as sole or chair)
Lawyers sitting as arbitrator 5

Gibson Dunn is one of the current heavyweights of the US litigation scene. In 2012 it was named Litigation Department of the Year by American Lawyer magazine for its regular appearances on high-stakes matters. Although not at the same level – and in some ways having to swim against the tide of the firm’s interest – the international arbitration group has been making some headway.

The core of the current practice formed between 2007 and 2008, with the lateral hires of Cyrus Benson from White & Case and Lord Falconer, the United Kingdom’s former secretary of state for justice. Laurence Shore joined in 2008, serving as co-head of the practice until his return to his former firm, Herbert Smith Freehills, in 2013.

The practice bounced back later that year with the hire of Penny Madden (now a QC) and her team from Skadden Arps Slate Meagher & Flom in London – bringing with them a US$16 billion treaty claim against Algeria, among other matters.

It has had a foothold in Hong Kong since 2010, when it hired former GE in-house counsel Kelly Austin. In 2015 the office also welcomed partner Robert Pé, former head of Asia dispute resolution at Orrick Herrington & Sutcliffe. He’s a senior legal adviser to Myanmar opposition leader Aung San Suu Kyi.

Away from mainstream commercial work, Gibson Dunn enjoys a franchise for sports-related arbitration thanks to Maurice Suh, a partner in Los Angeles. Suh has defended numerous sports stars accused of doping violations, including disgraced Tour de France winner Floyd Landis.

Meanwhile, Gibson Dunn’s litigation team continues to be one of the first names on the list for anyone who needs litigation to enforce or resist foreign judgments and awards.

Network

East and West Coast United States, London, Paris and Hong Kong for international arbitration. The firm has also opened an office in Singapore.

Who uses it?

It is acting for Yukos minority shareholders in a pair of Energy Charter Treaty claims against Russia and for Kuwaiti logistics firm Agility in the first-ever ICSID claim against Iraq (see ‘Recent events’). Other clients for investment treaty work include Egypt’s Global Telecom; Hong Kong mining company SouthGobi Resources (for a claim against Mongolia); and Zimbabwe’s second-largest telecoms operator.

The government of Djibouti has used the firm in a high-value LCIA claim against DP World over a port terminal (as well as for an unsuccessful English court action against a political opponent that attracted considerable notoriety in the UK press and led to the dismissal of one of the firm’s partners).

Elsewhere it’s been retained by Marriott International, Citibank, Hyatt, UBS, Anglo American, Facebook, satellite services provider SES, Enel, Brazilian defence contractor Embraer, Aspen Technologies, Russia’s Vimpelcom and controversial Russian former politician Ashot Egiazaryan.

The firm is lead counsel to Chevron in multiple litigations in the United States, Argentina, Brazil and Canada arising from the well-known US$9 billion oil pollution case brought by a group of indigenous plaintiffs in Ecuador.

Track record

Not long after arriving from Skadden, Penny Madden helped Orascom reach a US$4 billion deal with Algeria over ownership of mobile operator Djezzy, suspending a US$16 billion investment treaty claim.

A team led by Cy Benson helped an affiliate of Yukos Oil Company fend off a US$250 million ICC claim brought against it by Poland’s PKN Orlen over the sale of a Lithuanian refinery. PKN challenged the award in the English courts, but the case was dismissed.

In another Yukos matter, litigators in the New York office persuaded a court to confirm a US$74 million award that Luxembourg-based Yukos Capital won against Rosneft subsidiary Samaraneftegaz in compensation for unpaid loans. The firm had already obtained an attachment order against Rosneft (and a US$600 million security) pending the award.

In 2014, the firm continued its winning streak for Yukos when it convinced a New York court to issue an order against Samaraneftegaz, restraining it from moving assets until it satisfied an ICC award worth US$186 million.

Some of the firm’s best-known victories have been in litigation for Chevron. The US oil company asked the firm to obtain out-takes from Crude, the 2009 documentary charting the environmental litigation against Chevron in Ecuador. The evidence the firm obtained helped to persuade a New York district court to rule that the Ecuadorean proceeding had been tainted by corruption – a decision upheld in 2016 by the Second Circuit.

The litigation team also scored a victory for a group of holdout creditors from Argentina’s 2001 sovereign debt default in a well-known US appeals court action against the state, NML Capital v Argentina.

Recent events

An UNCITRAL claim that the firm is pursuing on behalf of Yukos Capital against Russia cleared the jurisdictional phase in a majority ruling in early 2017. It is part of a second wave of Energy Charter Treaty cases relating to the expropriation of Yukos, which has already seen Russia ordered to pay US$50 billion to the oil company’s majority shareholders in 2014.

Gibson Dunn is acting for another Yukos investor, Cypriot entity Luxtona, in a separate ECT claim that has yet to see an award. A third claim, brought on behalf of Dutch entity Financial Performance Holdings, was withdrawn in 2016.

Kuwait’s Agility instructed the firm for a US$380 million ICSID claim against Iraq over the loss of its stake in a Kurdistan mobile operator. It is Iraq’s first case at the centre after signing the ICSID Convention in 2015.

The firm was instructed by Global Telecom – an Egyptian operator majority-owned by Russia’s Vimpelcom – for the first-known claim against Canada under a bilateral investment treaty. 

Canadian mining company Crystallex retained the firm in support of its efforts to collect on a mammoth US$1.4 billion ICSID award against Venezuela. Gibson Dunn is representing it in two Delaware court actions alleging that affiliates of Venezuela’s national oil and gas company PDVSA fraudulently transferred assets out of the reach of the state’s arbitral creditors.

The firm has also been acting for Russian ex-politician Ashot Egiazaryan in set-aside and enforcement proceedings in London and Los Angeles, after an LCIA tribunal ordered him to pay US$84 million over the appropriation of his business partner’s stake in one of Moscow’s largest shopping centres. The award was upheld on appeal in London in 2016, while a California court granted a freezing order against Egiazaryan’s assets.

Client comment

Joaquín Valcárcel Martínez from Enel commended an “outstandingly skilled, fully available team capable of adapting efficiently to the evolving dynamics of the case”.

He singled out Cyrus Benson, praising “his ability to quickly translate complex legal discussion into easily understandable and compelling reasoning”.

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