Assisting the Yukos majority shareholders in efforts to reinstate their US$50 billion award against Russia
|People in Who’s Who Legal||1|
|Pending cases as counsel||25|
|Value of pending counsel work||US$70 billion (of which US$50 billion relates to Yukos)|
De Brauw has a long tradition in arbitration – former partner Lodewijk Sillevis Smitt was president of the Netherlands Arbitration Institute (NAI) for almost 20 years until his retirement in 2003. Partner Marnix Leijten is a vice president of the ICC Court while Bommel van der Bend is a member of the NAI board. Another partner, Edward van Geuns, is on the board of the Dutch Arbitration Association, launched in 2013.
Some of its success is thanks to its homeland’s central role in the European gas industry. De Brauw was one of the first to ride the wave of gas-pricing arbitrations that broke in Europe a few years back, and since then has won price readjustments for client GasTerra worth over €2.3 billion. The firm is also increasingly active in investor-state arbitration. Its lawyers are admitted in England and Wales, New York and Canada as well as the Netherlands.
Five of the six partners in De Brauw’s international arbitration group are in Amsterdam. Van Geuns has been based in Singapore since 2016.
The wider firm has offices New York, London, Brussels, Beijing and Shanghai. It is also a member of the “Best Friends” network of law firms that includes five other GAR 100 firms: Italy’s BonelliErede, France’s Bredin Prat, Germany’s Hengeler Mueller, Slaughter and May in the UK, and Spain’s Uría Menéndez.
Who uses it?
Dutch and foreign multinationals, including healthcare insurer Achmea, chemical producer AkzoNobel, Dutch Railways, GasTerra, Philips, Shell, Telefónica, Unilever, travel commerce broker Travelport and semi-conductor manufacturer NXP Netherlands.
The firm is defending the former majority shareholders in Yukos Oil Company in Dutch set-aside proceedings brought by Russia, and has acted for Yukos affiliates in other cases – including efforts to enforce four Russian awards against Rosneft.
A rare government client is Ecuador – for Dutch set-aside proceedings against Chevron. Kazakhstan has also used Marnix Leijten as an expert witness in an ICSID case (KT Asia).
The firm has helped GasTerra – a joint venture between Shell, ExxonMobil and the Dutch government – win substantial retroactive price adjustments under long-term supply contracts with Italy’s Eni. In 2012, an UNCITRAL panel granted GasTerra a price increase worth €850 million, followed by a similar ruling in 2013 by an ICC panel to the tune of €455 million. Freshfields acted for Eni in both cases. There was a further victory against Eni in 2016 (see ‘Recent events’).
In another case for GasTerra, the firm won a favourable partial award in an ad hoc German arbitration, with the opposing party’s price adjustment claim dismissed and a favourable settlement following soon after.
Outside the realm of gas pricing, it helped US jeweller Tiffany set aside a US$450 million award in favour of Swiss watchmaker Swatch in the Dutch courts. That ruling is now under appeal.
In the investment treaty arena, it won a €22 million UNCITRAL award for Dutch health insurer Achmea in 2012. Thanks to Slovakia’s efforts to set aside the award in the German courts, the European Court of Justice is now finally considering the thorny question of whether intra-EU bilateral investment treaties are compatible with EU law. De Brauw has reportedly succeeded in attaching Slovakian bank accounts in Luxembourg in support of the award.
De Brauw also helped Achmea bring a second treaty claim against Slovakia over its plans to establish a single-payer healthcare insurance market in the country. Though the claim failed, the company said the manoeuvre helped to persuade Slovakia to shelve its expropriation plans.
The firm scored two victories for semiconductor manufacturer NXP Netherlands in 2012 in a post-M&A dispute with STMicroelectronics. An ICC tribunal issued a US$59 million award in the client’s favour. A second case brought by the other side was dismissed a year later.
A further 2012 win was a €40 million award in favour of Electrabel and E.On Benelux in a Dutch arbitration against Nuon (owned by Sweden’s Vattenfall).
De Brauw achieved another victory for GasTerra in 2016, winning the dismissal of Eni’s claim for a €2 billion gas price cut. It has now filed a fresh arbitration on behalf of the Dutch trader and persuaded a court to freeze €1 billion in assets owned by Eni’s Amsterdam operation.
The firm helped Dutch technology group Philips win €135 million in an ICC claim against Japanese consumer electronics company Funai over the latter’s failure to complete the purchase of Philips’ lifestyle entertainment division.
De Brauw won an award for client NS Cargo in a German arbitration against Deutsche Bahn over the value of the Betuwe Route, a cargo railway between the Port of Rotterdam and Germany.
A new instruction came from the Malaysian arm of Shell to defend it against a US$245 million claim filed by a Malaysian state-owned shipping company at the Kuala Lumpur Regional Centre for Arbitration. It was also tapped by Amsterdam-based Amlyn Holding to bring an Energy Charter Treaty claim against Croatia over a biomass power plant.
But 2016 was overshadowed by the upset in the Dutch courts, where Russia succeeded in overturning the US$50 billion award in favour of De Brauw’s client, the majority shareholders in Yukos. The firm is pursuing an appeal of that decision, which turns on whether Russia is provisionally bound by the Energy Charter Treaty despite not having ratified it.
In another setback, the firm failed to win the set-aside of interim and partial awards in favour of Chevron in its US$9 billion dispute with Ecuador over environmental pollution in the Amazon.
A regular client who has used the firm in several high-value disputes says it “clearly beats its competitors in professionalism, preparedness, power of argumentation, alertness, tactics and thorough appreciation and understanding of the issues at stake.”
Leijten is described as “exceptionally committed, with very strong ethical values and excellent performance both on the strategic level and in execution”; Bregje Korthals-Altes is “very solid” and “makes complex issues less complex”; and Marsman is “outstanding” in hearings.
Another client in a commercial dispute says Edward van Geuns is a “strong lawyer, meticulous and very convincing in the arbitration hearings.”