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GAR 100 - 11th Edition

Wilmer Cutler Pickering Hale and Dorr

04 April 2018

Settled a multibillion-dollar matter for Iraqi Kurdistan and lodged new claims against Croatia and Belarus

People in Who’s Who Legal 7
People in Future Leaders
8
Pending cases as counsel 70
Value of pending counsel work US$231 billion
Treaty cases 16
Current arbitrator appointments
47 (of which 18 are as sole or chair)
Lawyers sitting as arbitrator 5

The Washington, DC-based firm’s international arbitration group developed from legacy firm Wilmer Cutler and Pickering’s emphasis on international matters. In the 1980s, famous name partner Lloyd Cutler agreed that he and colleagues should represent Greenpeace in arbitration with France over the bombing of the organisation’s flagship, the Rainbow Warrior. Ten years later, the firm went on to represent Eritrea against Yemen in an arbitration in The Hague.

In both matters, Gary Born, then an up-and-coming member of the firm and former clerk to US Supreme Court Justice William Rehnquist, led the work – beginning a long focus on international arbitration (on which he had already written learned books).

The group formed in London, fuelled by commercial work, most notably a pair of sizeable ICC instructions from Deutsche Telekom. It became home to a mix of common and civil law specialists and was one of the first in London to have a civil-law trained partner (Austrian Franz Schwarz). Today, it has one of the better foreign-lawyer and intern programmes, which encourages this mix. Its advocacy style reflects a blend of the continental and US traditions.

Later openings came in the United States and Germany. By now, the firm was Wilmer Cutler Pickering Hale and Dorr, having merged with US firm Hale and Dorr in 2004.

The original team has remained intact for an unusually long time compared to some of its competitors, though partner Wendy Miles left in 2014 after 15 years with the group.

Born, as chair of the group, is still a key figure – though some of his attention is these days directed towards the Singapore International Arbitration Centre (SIAC), whose presidency he assumed in 2015.

The day-to-day leadership of the practice has now passed to two vice chairs: Schwarz and Rachael Kent. Other key names include John Trenor, Steven Finizio, Duncan Speller and Maxi Scherer.

Network

The key offices for international arbitration are London, New York, Frankfurt and Washington, DC, with others in Berlin, Palo Alto and Boston.

Who uses it?

The practice has a fair few regular clients – and a policy of not naming them. It tends to focus on higher-value work, which in recent years has meant plenty of price-reopener energy disputes. It’s also had a lot of work relating to pharmaceuticals, IP, financial services and telecoms.

Clients of public record include Volkswagen, Repsol, Switzerland’s Swatch, Deutsche Telekom and Austrian technology group Andritz.

In the investment law area (in which it is not so famous), the practice is acting for US drugmaker Merck Sharp & Dohme in a denial of justice claim against Ecuador; and for Greek construction company J&P-Avax in an ICSID claim against Lebanon (relating to a €360 million power plant project near Tripoli).

It’s also known for taking on non-traditional, non-commercial cases, such as representing the Sudan People’s Liberation Movement (a former rebel force) in an arbitration with the Sudanese government over the boundaries of the oil-rich Abyei region. The dispute helped determine who could participate in a referendum on Abyei’s future and thus paved the way for South Sudan’s independence.

Another prominent client is the Kurdistan regional government of Iraq (see ‘Recent events’).

Track record

In 2014, the firm won a US$450 million award for Swiss watchmaker Swatch in a dispute with US jeweller Tiffany & Co before the Netherlands Arbitration Institute. The tribunal also awarded Swatch almost US$10 million in costs. A Dutch appeal court upheld the award in 2017.

It helped Volkswagen obtain a confidential payout from Suzuki Motor Corporation to settle a US$3.8 billion ICC dispute over a troubled partnership to market eco-friendly cars in Asia. Another case saw WilmerHale help Andritz obtain a €40 million payout to settle an ICC arbitration over Uruguay’s largest pulp mill project.

Co-counselling with Three Crowns, Gary Born helped a group of South African mining investors win a landmark denial of justice claim against Lesotho. Brought under the Southern African Development Community’s investment protocol, the claim concerned Lesotho’s role in the shuttering of a regional court. It has cleared the way for a new US$200 million UNCITRAL claim against Lesotho (in which WilmerHale is not involved).

The firm had a series of wins for Deutsche Telekom in the Vivendi matter mentioned above. Although the saga eventually ended in settlement, for the 10 years while it was going on, the German client was regarded as firmly ahead.

The firm pulled off a similar trick for France Télécom in the early 2000s, with Freshfields as opposing counsel.

After the result was handed down in the Abyei arbitration, the firm’s clients reportedly broke into song, they were so pleased. Luka Biong Deng, a senior official in the South’s ruling party, later said the firm’s work was “extraordinary in every way”.

Recent events

Solicitor advocate Charlie Caher was promoted to the partnership in London in 2017. Victoria Narancio and Daniel Costelloe were made counsel at the start of the following year.

The firm helped Iraqi Kurdistan settle a multibillion-dollar LCIA claim brought by a United Arab Emirates consortium including Dana Gas and Crescent Petroleum. Kurdistan agreed to pay US$1 billion and to grant new oil and gas exploration blocks to the claimants, who dropped their efforts to enforce a US$1.98 billion award and withdrew further claims worth US$39 billion that were pending in the arbitration.

For Swiss bank UBS, the firm convinced a Puerto Rican court to enforce an award against a local employees’ association that had failed to produce evidence backing up its allegations of arbitrator bias and misconduct.

WilmerHale obtained a favourable partial award in a US$100 million dispute over a gas sales contract involving a state-owned energy company in the Caribbean; and a favourable settlement in a US$3 billion ICC gas pricing dispute.

It picked up new instructions from Austrian banks Raiffeisen and Addiko for ICSID claims against Croatia relating to legislation affecting Swiss franc-denominated loans. A Russian investor in a luxury railway service retained it for an ICSID case against Belarus.

It is also representing US and Tanzanian companies in investment treaty claims against an African state concerning expropriation of land and infrastructure; and an Egyptian chemicals company in a claim against a Middle Eastern state.

It continues to represent South Sudan in boundary disputes with Sudan and is acting in several new gas price review cases.

Since taking over the presidency of SIAC from Michael Pryles, Born has overseen a series of initiatives, including the release of the centre’s sixth set of rules and new investment arbitration rules for the centre. In 2017, he unveiled a protocol for institutions to cooperate in the consolidation of international arbitrations subject to different rules.

Born and London-based senior associate Jonathan Lim advised Fiji on its new international arbitration act, which was enacted in 2017. The pair were previously part of a task force supporting Somalia’s accession to the New York Convention.

In addition, Born garnered headlines when he presented a proposal for a default form of commercial dispute settlement at UNCITRAL’s 50th anniversary conference.

He continues to sit as arbitrator in several disputes, including investment treaty cases brought against the Czech Republic over reforms to the country’s solar power sector. One of those cases reached a final award in 2017, with Born dissenting from the majority decision favouring the state.

Client comment

The in-house counsel to a major state-owned gas company says the firm “always knows what to do and how to do it better than others.” John Trenor has “a brain like a computer” and Steven Finizio is one of the best legal advisers the company has ever worked with, he says.

Alan Crain, chief legal and governance officer at oilfield servicer Baker Hughes, calls the firm “truly masterful.”

“The Wilmer team exercised excellent judgement throughout the proceedings with respect to not calling certain fact and expert witnesses, reducing the planned cross examinations and adjusting to changes in adverse counsel’s assertions,” he says.

James Heavner, director of litigation at financial services group The Hartford, says WilmerHale “simply out-lawyered the other side” when they were retained in a dispute. “The Wilmer team thought the case through, from start to finish, left no exposed flanks, and was prepared for every argument the other side could muster.”

Insight

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