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GAR 100 - 11th Edition

Allen & Overy

04 April 2018

Won against Spain and Greece and bringing a new treaty claim against India

People in Who’s Who Legal 8
People in Future Leaders 13
Pending cases as counsel 247
Value of pending counsel work US$34 billion
Treaty cases 16
Current arbitrator appointments 22 (of which 14 are as sole or chair)
Lawyers sitting as arbitrator  13

Allen & Overy became known in international arbitration thanks to former partner and arbitrator David St John Sutton. By the time he joined the bar in 2001, there were others ready to take over, including current partners Judith Gill and Matthew Gearing (both QCs).

Allen & Overy’s team subsequently grew to be one of the biggest in the London market and one of the most admired, particularly as a finder of talent. It’s been an innovator too – bringing the first-ever Energy Charter Treaty claim and generally entering fast into the world of investment treaty disputes. Unlike some in the London market, A&O partners do their own advocacy in international arbitration.

In 2005, the practice started branching out to other cities using lateral hires: first in New York, then Hong Kong and Singapore, and more recently Paris and Frankfurt.

After many years with Gill at the helm, the baton passed to Stephen Jagusch then to Gearing in Hong Kong and Michael Young in Paris. In 2016, Young became the second practice head to leave for Quinn Emanuel Urquhart & Sullivan, following in Jagusch’s footsteps. Mark Levy in London now co-chairs the group alongside Gearing.

Gill is based in Singapore and Gearing in Hong Kong, underscoring the importance of Asia work to the firm. She is also the first woman president of the LCIA, while he recently became chair of the HKIAC.

Since the days of St John Sutton, Gill and Gearing have edited Russell on Arbitration, one of the leading texts on English arbitration law (with their former boss as editor-in-chief). Other names to know include partners Kate Davies in London, Frances van Eupen and Matthew Hodgson in Hong Kong, Marie Stoyanov in Paris, Daniel Busse in Frankfurt, and Mark van Brakel in Sydney.

Network

The firm operates in 31 countries. For arbitration, the key cities are London, Paris (where it poached a team from Herbert Smith), Hong Kong, Singapore, Dubai, Amsterdam, Frankfurt, Bratislava, Sydney and Perth.

Who uses it?

Allen & Overy is renowned for arbitrations concerning oil and gas and renewable energy, the Energy Charter Treaty (especially against EU member states), derivatives and other financial products (thanks to a long-standing connection with ISDA, the derivatives standards organisation).

Clients that have used it include European energy majors GDF Suez, Shell and BG, US energy company AES, China National Offshore Oil Corporation and Qatargas.

It’s also worked for telecoms groups Millicom and Nokia, as well as Samsung, Nissan and Toshiba.

On the government side, the firm has acted for Pakistan in a number of investment treaty arbitrations. The Netherlands, Peru, Slovenia, the United Arab Emirates, Oman, Poland, Azerbaijan and Cuba have also been clients. It is also one of China’s preferred law firms in investment treaty matters.

Track record

In 2016, the firm helped Pakistan knock out a pair of treaty claims worth US$640 million brought by gas investor Progas and its chairman Ali Allawi concerning a gas import terminal in Karachi, winning the state £11 million in costs. It is now defending the awards in English court proceedings.

On the investor side, it helped Deutsche Bank win a US$60 million ICSID award against Sri Lanka in 2012, which established that a derivatives contract is an “investment” for treaty purposes.

Some examples of defence wins in commercial arbitrations include helping Italian engineering company Ansaldo to defeat a US$436 million ICC claim brought by Siemens; and knocking out an ICC claim brought by French insurance company CNP Assurances against the Bank of Cyprus.

Meanwhile, telecoms operator Millicom is only still in Senegal thanks to a series of Allen & Overy wins during the skirmishing stage of an arbitration which led to contract negotiations.

Recent events

The firm continues to obtain good results in investor-state cases. For example, it won a €128 million Energy Charter Treaty award for British investment fund Eiser Infrastructure against Spain – the state’s first loss in the numerous treaty claims brought over reforms to solar power subsidies.

Other ECT claims relating to reforms to the framework for renewable energy in Spain and Italy continue to be a staple of the firm’s practice. Merits hearings have already been completed for a number of those cases. In one of them, the firm already won a jurisdictional ruling for a Deutsche Bank subsidiary in 2016 confirming that EU law does not trump the ECT.

The firm says it obtained a good result for Belgian dredging company Baggerwerken Decloedt En Zoon in an ICSID claim against the Philippines in early 2017. While the award is not yet public, the firm reports that it won significant damages.

A team led by Daniel Busse in Frankfurt helped commercial shipyard operator Privinvest win a €200 million ICC award against Greece; two related ICC cases continue. Together with WilmerHale, the firm persuaded the Amsterdam Court of Appeal to reinstate a US$450 million award in favour of Swiss watchmaker Swatch against US jeweller Tiffany.

Not every case went the firm’s way. It failed to prevent Pakistan from being ordered to pay US$800 million to Turkish company Karkey Karadeniz in an ICSID case over the seizure of its power generation vessels during an energy crisis in Karachi. It also could not prevent another ICSID tribunal from holding the state liable for denying a lease to Australian mining company Tethyan Copper. Allen & Overy is no longer acting for Pakistan in those cases, though it continues to advise the state on other matters.

The firm convinced a tribunal in Vienna to accept jurisdiction over a €588 million claim brought by Enel-owned utility Slovenské Elektrárne against the Slovakian government, but ultimately saw the claim dismissed on the merits.

It is advising the World Bank Group’s private lending arm and a fund set up by the Organization of the Petroleum Exporting Countries in an LCIA dispute with Quantum Oil Terminals. Other high-profile instructions came from the United Arab Emirates in an ICSID claim brought by Turkish construction company BM Mühendislik over a road project in Abu Dhabi; and from Oman in a treaty claim by Samsung.

Nissan has retained the firm to bring a US$776 million investment treaty claim against India over a state government’s failure to deliver promised incentives to build a car factory. The firm continues to act for UK’s BG Group and India’s Reliance Industries in a dispute with India over oil and gas fields off the coast of Mumbai.

It also acts for Gazprom subsidiary South Stream in a dispute with Italy’s Saipem – reportedly one of the largest construction arbitrations of recent times.

Matthew Gearing took over as chair of the Hong Kong International Arbitration Centre in early 2017.

The firm bid farewell to counsel Andrew Pullen in Singapore, who left for Fountain Court Chambers; and partner Jeffrey Sullivan in London, who moved to Gibson, Dunn & Crutcher. Willem van Baren, who acted for Swatch in the Dutch courts, retired from the partnership in Amsterdam.

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