The Belgian boutique won a stunning reversal of fortune for Russia in the Yukos case
|People in Who’s Who Legal||6|
|Pending cases as counsel||5|
|Value of pending counsel work||US$55 million|
|Current arbitrator appointments||110 (of which 60 are as sole or chair)|
|Lawyers sitting as arbitrator||9|
Hanotiau & van den Berg was one of the earliest arbitration boutiques, founded in 2001 by Belgian Bernard Hanotiau, a former partner at CMS Derks Star Busmann in Brussels; and Dutch arbitrator Albert Jan van den Berg, formerly of Freshfields Bruckhaus Deringer in Amsterdam. They chose the boutique model partly to avoid the conflicts of interest that were part and parcel of practising at a large firm – and declared English as the official language of the firm.
Other founding partners were Paul Lefebvre, Pascal Hollander and Sébastien Ryelandt, also from CMS. All remain at the firm except Ryelandt.
Musing on the firm’s success at an event to mark its 10th anniversary in 2011, van den Berg said the firm had turned out to be “a much better proposition” than he thought. “When we set it up [without external financing] I’d have been happy to cover my costs. I’ve been delighted with the constant flow of business.”
A lot of its success can be attributed to canny hiring and the diversity of nationalities at the firm – almost half the lawyers are from foreign jurisdictions.
Over the past 16 years, the name partners have grown into two of the world’s foremost arbitrators, whose credentials hardly need restating. In every cycle of research for Who’s Who Legal: Arbitration, the pair finish among the most highly regarded individuals (in the 2016 edition, Hanotiau was named arbitration lawyer of the year).
Van den Berg is an acclaimed specialist on the New York Convention and has proposed a reworked version of the treaty (the “Miami draft”) that seeks an elegant solution to the growing number of problems that those relying on the convention are experiencing. In 2014, he took over from Jan Paulsson as president of the International Council for Commercial Arbitration (ICCA), where he continued his old friend’s drive to increase diversity in international arbitration and to shake up the composition of the governing board. He stepped down from the role in 2016 following the ICCA Congress in Mauritius.
In 2013, the firm quietly stopped taking instructions as counsel in investor-state arbitrations to avoid the risk of perceived issue conflicts arising from the partners’ work as arbitrators. The policy means the firm won’t act as counsel in arbitrations brought under investment treaties or domestic laws on foreign investment, or in ICSID annulment proceedings. It does, however, continue to act as counsel in commercial arbitrations as well as in set-aside proceedings in national courts.
It’s in this last capacity that the boutique achieved its highest-profile victory to date, when van den Berg helped Russia persuade a first-instance court in the Netherlands to set aside the US$50 billion Energy Charter Treaty award in favour of the former majority shareholders in Yukos. An appeal is pending.
When the firm opened in 2001, one of its immediate difficulties was its Brussels location. “We weren’t in London, New York or Paris, or one of the major centres of arbitration,” remembers Hanotiau. That actually proved a non-issue, but in any case the firm has since opened in a major arbitration hub: Singapore. There it has had offices in Maxwell Chambers since 2012.
Who uses it?
Russia and Croatia have been government clients. But the firm is coy about disclosing its commercial clients and few of its cases as counsel end up in the public domain, so it’s hard to provide a longer list.
In one of its final investor-state cases as counsel, the firm helped a family of Belgian investors win a US$2 million ICSID award against the east African state of Burundi for the indirect expropriation of a bank.
In the same year, van den Berg helped Croatia defend an UNCITRAL award in Dutch set-aside proceedings brought by Austrian casino operator Adria. The award, which rejected the investor’s €60 million claim over the termination of two joint ventures, was upheld by the court, in a decision celebrated as confirming the Netherlands’ status as an arbitration-friendly jurisdiction.
As already mentioned, the firm achieved headline-grabbing results after being approached to handle Russia’s challenge to the US$50 billion Yukos awards. A Dutch first-instance court ruled in April 2016 that Russia was not bound by the Energy Charter Treaty, which the state had never ratified. It remains to be seen whether the appeal court will concur. The firm is also defending Russia against Yukos enforcement proceedings in the Belgian courts.
The two name partners kept up their busy arbitrator practices in the commercial and investment arbitration arenas. Hanotiau was part of an ICC tribunal that threw out a US$15 billion fraud claim against Telecom Italia in September 2016, and chaired another ICC panel that handed Turkish state pipeline company BOTAŞ a retroactive price cut on gas supplies from Iran worth billions of dollars. He also chaired ICSID panels that threw out claims against Senegal and Montenegro at the jurisdictional stage.
Van den Berg meanwhile had various appointments at ICSID. He was part of a panel that summarily dismissed a South Korean investor’s claim against China in early 2017. He’s also hearing a case against Egypt brought by Qatari broadcaster Al Jazeera relating to the imprisonment of journalists. He continues to preside over Vattenfall’s claim against Germany concerning the state’s phase-out of nuclear energy; and is hearing a US$5 billion claim against Guinea over the revocation of mining licences on allegations of corruption.