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GAR 100 - 11th Edition

White & Case

04 April 2018

The US powerhouse continues to defend Russia and won new instructions from Georgia and Hungary’s MOL

People in Who’s Who Legal 15
People in Future Leaders
23
Pending cases as counsel 318
Value of pending counsel work US$144 billion
Treaty cases 35
Current arbitrator appointments
44 (of which 23 are as sole or chair)
Lawyers sitting as arbitrator 21

White & Case has regularly appeared in the top two or three of the GAR 30 since the first edition. In 2015, it took the number-one spot for the first time. Like Freshfields Bruckhaus Deringer, the firm has “big names”, lots of offices and a history as a pioneer in this area.

Unlike Freshfields, and unlike several other leading international arbitration practices, White & Case is looking much the same in terms of personnel as it has for years. It hasn’t suffered any major defections to new entrants in the market recently. As such, it’s shining even more than usual. So how did it get to this enviable position?

White & Case was one of the first US law firms to do extensive work overseas. During the First World War, it handled all the legal work for the supply of munitions to Britain and France (France made founding partner Justin DuPratt a White Knight of the Legion of Honour in gratitude). Today’s international arbitration practice grew from those origins. As a result of its early foreign work, international disputes began to arrive on its doorstep. In the 1950s, it worked on the famous Saudi Arabia v Aramco dispute (a young associate named Stephen Schwebel took part). This was followed by other cases.

In the 1970s, things kicked off after one Charles Brower (today a renowned international arbitrator) founded an office in Washington, DC, leading to early ICSID work (the firm has now worked on more than 100 cases there). Indeed, the practice has proved a particular pioneer in investor-state work. Its credits include:

  • the first ICSID case against a Latin American state (Santa Elena v Costa Rica);
  • one of the largest ICSID awards on record (US$877 million in CSOB v Slovakia);
  • defending the first Energy Charter Treaty case (AES v Hungary) and the first ECT case to reach a merits award (Plama v Bulgaria); and
  • bringing one of the earliest NAFTA cases (Mondev v United States).

The practice now offers 180 lawyers working around the globe, including a number of spots where rivals aren’t on the ground.

Though a lot of work is for sovereigns, there are some niche areas associated with particular offices. In Paris and London, there’s a heavy focus on project and construction work. Christopher Seppälä in Paris is long-standing legal adviser to the International Federation of Consulting Engineers (FIDIC), and Phillip Capper in London is also revered on construction matters.

Meanwhile, in Mexico City and Washington, DC, areas of special interest are investor-state work and Latin America. Jonathan Hamilton, a partner in DC, edits a website on Latin American arbitration law.

Rivals will occasionally suggest it’s peculiar that White & Case offices seem to have a narrow focus, adding that they “don’t see them in the market” as a competitor in the way they see some of the other practices in this book. But few would dispute that White & Case is a formidable opponent whatever the type of arbitration. And there’s some evidence that individual White & Case offices are broadening their sphere of activity. Paris now spends a lot of time on energy work, thanks to Michael Polkinghorne, while London (aided by other relevant offices) is building a name in Russia-related work, thanks to David Goldberg.

It’s also worth noting that, of the top practices, White & Case is one of the least male-dominated: senior female partners include Carolyn Lamm (a past president of the American Bar Association), Abby Cohen Smutny, Andrea Menaker, Ank Santens and Anne Véronique Schlaepfer.

Network

Of the firm’s 39 offices, 22 are home to international arbitration names. As well as the usual centres – London, Paris, New York, DC, Stockholm, Hong Kong and Singapore – the list includes Mexico City, Miami, Frankfurt, Warsaw, Moscow, Doha and Dubai. The practice also now has a presence in Geneva and Seoul.

Who uses it?

Or reuses it. White & Case is blessed with a list full of clients that return. That’s partly down to working for so many states, as they tend to be loyal.

Some regular government clients are Bulgaria, the Philippines, Peru, Uzbekistan and Georgia, as well as various Ukrainian state entities including Naftogaz. Russia is using it to help resist enforcement of the US$50 billion Yukos awards in the United States and defend another high-profile treaty case (see below).

On the corporate side, it’s done work for Hochtief, Alstom, Eni, Hong Kong’s Hutchison Port Holdings, India’s Jindal Steel & Power and Poland’s PKN Orlen among many others.

In recent years, the practice has picked up more of a following in Eastern Europe and Latin America, including one of the world’s richest individuals (in Eastern Europe) for whom it conducted a monumental dispute (now settled).

The practice is also very popular with big construction firms. In that realm, clients have it acting on one of the world’s largest current disputes (about a next-generation nuclear reactor) as well as on some of the bigger issues arising from the project to enlarge the Panama Canal.

Track record

Some of its “greatest hits” were mentioned above. As those would indicate, White & Case has a reputation around the market as a fearsome and creative opponent. In fact, in ICSID work, a survey recently assessed White & Case as the “winningest” law firm at ICSID. Although the survey can be critiqued (a couple of firms from eastern Europe do surprisingly well in its methodology), White & Case’s record is hard to argue with.

Looking at the recent past, big White & Case wins include:

  • establishing jurisdiction for tens of thousands of Italian bond­holders to bring a collective ICSID claim against Argentina (the famous Abaclat case), eventually securing them a US$1.35 billion settlement;
  • a US$740 million ICSID win for Canadian mining company Gold Reserve against Venezuela;
  • helping the Philippines triumph in a long-running ICSID dispute over an airport terminal, by having the case thrown out twice;
  • winning the complete dismissal of a €322 million ICSID claim against Hungary over a lakeside casino resort that never got built;
  • helping a Lebanese-owned company win US$550 million against the Republic of the Congo (and defending the award against corruption allegations in the French courts);
  • obtaining a US$295 million payout for Siemens and its South Korean partner to end a decade-long ICC dispute with Mexico’s Pemex over a refinery upgrade;
  • the first dismissal of a treaty claim at ICSID because of corruption (Metal-Tech v Uzbekistan);
  • knocking out the bulk of a US$1.3 billion treaty claim against Uzbekistan (investor Oxus Gold won only US$10 million);
  • helping Peru defeat a US$800 million treaty claim by the US’s Renco Group relating to liability for environmental pollution in the Andes; and
  • a US$40 million win for SGS against Paraguay thanks to a treaty’s “umbrella clause” (the company had failed in two similar cases against Pakistan and the Philippines, using other counsel).

Recent events

White & Case also continues to help Russia resist enforcement of the US$50 billion Yukos awards in the UK and US courts. The claimants have abandoned similar efforts in Belgium, France and Germany since the awards were set aside in 2016 by a court in The Hague.

Russia also instructed partner David Goldberg in London to defend it in a US$12 billion investment treaty claim by banker Sergei Pugachev. An UNCITRAL tribunal recently ordered Russia to suspend efforts to extradite Pugachev from France but refused to order the suspension of civil and criminal proceedings against him worldwide.

Goldberg has also been assisting one of the Micula brothers in a bid to enforce a US$250 million ICSID award against Romania, in the face of arguments by the European Commission that it contravenes EU state aid rules.

For duty-free investor Flemingo, it won a €20 million treaty claim against Poland over the termination of leases for shops at a Warsaw airport. It helped Uzbekistan knock out a US$132 million claim at ICSID brought by Spentex Netherlands.

The firm helped client Gold Reserve agree a US$770 million settlement with Venezuela that would allow the company to continue operating in the country. The Paris Court of Appeal upheld the company’s ICSID additional facility award around the same time. In 2017, Gold Reserve received a first payment of US$40 million after agreeing to new settlement terms that will see it receive more than US$1 billion in the next two years.

The Paris office has been representing a consortium including Germany’s Hochtief in an ICC dispute with an AES subsidiary concerning a Chilean hydroelectric power plant, which has given rise to proceedings before an emergency arbitrator and the local courts.

With Morrison Foerster, the firm helped Toshiba settle a trio of ICC arbitrations with Western Digital, enabling the client to proceed with a US$18 billion sale of its flash memory unit to a third-party consortium.

White & Case continued its representation of Finnish power utility TVO in a €5.8 billion ICC arbitration with Areva and Siemens over the construction of a nuclear power plant in Finland. The case has had 48 days of hearings over the past two years. TVO says two partial awards were issued in its favour in 2017. (Three Crowns, Shearman & Sterling and Baker & McKenzie are the opposing counsel.)

It continues to act for Spanish-Italian engineering consortium GUPC in multiple arbitrations against the Panama Canal Authority relating to the cost of the canal’s expansion. The cases have a combined value of US$5.7 billion, though the authority defeated a US$192 million claim in 2017.

There were setbacks in some cases, however. Client Orascom TMT – a Luxembourg-based company linked to the family of Egyptian billionaire Naguib Sawiris – saw its US$4 billion ICSID claim against Algeria dismissed an abuse of rights. The firm continues to act for Orascom in annulment proceedings.

The London office defended SCM, a company linked to one of Ukraine’s wealthiest oligarchs, Rinat Akhmetov, in an LCIA claim brought over the purchase of a Ukrainian telecoms company, which saw the client hit with a US$760 million award. A Cypriot court later granted the other side a freezing order against Akhmetov’s worldwide assets.

There were adverse awards in a pair of ICC cases, one against its client Oman in a dispute over the expansion of the state’s airports; the other against Taiwan’s Neo Solar Power Corp over the supply of silicon wafers.

Hungary’s MOL Group retained it to defend an LCIA claim launched by its consortium partners Dana Gas and Crescent Petroleum in a dispute concerning a settlement between the consortium and the Kurdistan region of Iraq.

It is defending Georgia from a treaty claim brought by Kazakhstan’s state-owned gas transportation company; and is representing US insurance company Metlife in an ICSID claim against Argentina over the nationalisation of the country’s pension market.

Other new instructions came from the State of New York in an arbitration with the Seneca Nation of Indians; and from Chinese company Hisense in a Singapore arbitration with Japanese electronics company Sharp. In that case, it helped the client win an emergency arbitrator order prohibiting Sharp from making public statements about the dispute.

The firm hired two partners: Max Bonnell joined the Sydney office from King & Wood Mallesons and Jun Hee Kim joined in Seoul after practising as in-house counsel at Hyundai Heavy Industries.

Francisco Jijón and Matthew Drossos in DC and Rebecca Shorter in London were promoted to the partnership in 2018, while Paddy Patrick became counsel in London.

Client comment

Ivan Kondov from Bulgaria’s Ministry of Finance says he’s used White & Case on “the eight most important international arbitration matters involving Bulgaria in the last 10 years”. In all of those he was impressed by the firm’s “good strategic judgement, strong argumentation and diligent approach to every matter”. The firm is “simply the best [we] have worked with”, he adds.

Doug Belanger of Gold Reserve interviewed six firms before selecting White & Case for its hard-fought claim against Venezuela. “What they promised is what they delivered,” he says. Their professionalism was “unparalleled” and their prosecution of the case “was superb from beginning to end”.

Belanger estimates the company spent “over US$20 million” to received an award of US$740 million. “To say we were pleased would be an understatement.”

Pericles Stroubos, senior legal counsel at Aegean Motorway, calls White & Case “one of the best legal firms in construction arbitration.” He extols “the level of detail in their work” and says he would recommend the firm “without the slightest hesitation”.

Insight

Reviews

Regional analysis from arbitrators around the globe, focussing on key developments in specific industry areas and jurisdictions.

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The Middle Eastern and African Arbitration Review 2019

Highlights

CRCICA Overview

Ismail Selim and Dalia Hussein

The Cairo Regional Centre for International Commercial Arbitration (CRCICA)

DIFC-LCIA Arbitration Overview

Alec Emmerson

DIFC Arbitration Institute (DAI)

Robert Stephen, Matthew Harley and Katy Hacking

DIFC-LCIA Arbitration Centre