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GAR 100 - 11th Edition

B Cremades & Asociados

04 April 2018

The Spanish boutique is taking on Venezuela at ICSID

People in Who’s Who Legal 2
Current arbitrator appointments 28 (of which 20 are as sole or chair)
Lawyers sitting as arbitrator 2

Bernardo Cremades followed an unusual career path, starting out as an arbitrator aged 26 then moving into advocacy work. He has been involved, as counsel or arbitrator, in more than 360 proceedings to date, and now focuses most of his time on arbitrator work. Among other roles, he is a former vice president of the LCIA and a current member of the International Council of Commercial Arbitration. He is a founding member of the Spanish Arbitration Club and was, for many years, president of the Spanish Court of Arbitration.

In terms of his jurisprudential contribution, his name is on many significant awards at ICSID, including cases concerning the formation of an arbitration agreement under an investment treaty; the relationship between contract and treaty claims; the effect of illegality on investment protection; and the definition of an investment. A source in Spain says his “influence can be seen in the most important judicial decisions in the field”, and he had a significant influence on the drafting of the 1998 Spanish Arbitration Law.

In 2013, Cremades’s contribution was recognised at a conference in Lima, Peru, where he and French arbitrator Yves Derains were presented with a liber amicorum with 96 contributing authors. In the same year, the King of Spain also presented Cremades with the Grand Cross of the Order of St. Raymond of Peñafort, in recognition of his services to the administration of justice and the study of law. He has also received a medallion from the Arab Association for International Arbitration recognising him as an “ideal arbitrator in Euro-Arab arbitration”.

The firm that bears his name, founded in 1969, is home to around 10 lawyers devoted to international arbitration, many of whom also undertake client work. It has a reputation for being Spain’s unofficial university of arbitration: a GAR special report on Spain discovered that at least half of the leading Spanish names in the market had earned their stripes at B Cremades & Asociados.

While many of those colleagues have moved on to pastures new, partner David Cairns is now also a well-known figure in his own right and also sits as an ICSID arbitrator. Educated in New Zealand, Cairns has worked in Madrid since 1999. He has featured in GAR’s “45 under 45” – a list of the leading younger practitioners in the field.

The founder’s son, Bernardo Cremades Jr, joined the firm in 2013 from Curtis, Mallet-Prevost, Colt & Mosle in New York. While at Curtis he advised on several high-profile arbitrations, including helping to defend Venezuela in ICSID claims initiated by US oil company ConocoPhillips, Mexican cement group Cemex and US telecoms investor Brandes.

Track record

The firm reports two successes for Gas Natural in pricing arbitrations against another Spanish energy company. Several billion dollars were at stake in each case.

Another public win was for Spanish road builder Elsamex in an ICSID claim against Honduras concerning withheld payments for the reconstruction of a road destroyed by a hurricane. A sole arbitrator awarded the company US$8 million in 2012. Honduras later settled with the investor after abandoning its effort to have the award annulled.

The firm has worked wonders for another client, helping to set aside an award in a dispute between a major German textile brand and its Spanish licensee. The firm hadn’t been involved in the original arbitration but went on to represent the client in a second arbitral proceeding where damages were reduced by 60% and a counterclaim for more than €243 million was upheld. The firm applied to the Spanish Supreme Court, which held that two of the arbitrators were professionally liable and ordered them to reimburse part of their fees.

In 2014, Cremades’s firm also brought home a €61 million win for Spanish shareholders in a multinational food group who brought a claim against its French parent company.

Recent events

Barbadian trust manager Blue Bank International & Trust replaced its original counsel after losing a US$400 million ICSID claim against Venezuela on jurisdictional grounds. It is now using B Cremades & Asociados for an annulment application. At issue in the case is whether a trustee can invoke treaty protection for assets it does not own.

Brazilian football club Santos FC has been using the firm in a dispute over the sale of Brazilian soccer star Neymar to FC Barcelona. The claim, which is against FC Barcelona, Neymar’s father and his family’s holding company, now before the Court of Arbitration for Sport. The firm also helped the club see off a related criminal complaint in the Spanish courts lodged by a Brazilian investment fund.

The firm has been acting in two arbitrations arising from the construction of a power plant in Panama, with its client prevailing in one of the cases and the second yet to be decided.

In another case, the firm helped a holding company owned by Bolivian opposition politician Samuel Doria Medina win around US$40 million in a case against a Mexican cement group heard before the Inter-American Commission for Commercial Arbitration. The award has since been challenged in the Bolivian courts as well as being the subject of US enforcement proceedings.

Cremades Sr continues to take on high-profile arbitrator work. He is part of an UNCITRAL tribunal hearing fugitive oligarch Sergei Pugachev’s US$12 billion investment treaty claim against Russia, and joined in an order on interim measures requiring Russia to suspend its efforts to extradite Pugachev from France.

Cairns is meanwhile part of a panel hearing a US$200 million NAFTA case brought by a Canadian investor against Mexico. He has also been appointed president of an ICSID case against Peru regarding the construction of a metro line.

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