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GAR 100 - 11th Edition

Sidley Austin

04 April 2018

An influential practice co-head retired from the firm

People in Who’s Who Legal 5
People in Future Leaders 2
Pending cases as counsel 152
Value of pending counsel work US$92 billion
Treaty cases 12
Current arbitrator appointments 11(of which 7are as sole or chair)
Lawyers sitting as arbitrator 5

Sidley Austin earned its international arbitration stripes around 2002. In that year, it absorbed trade and investment disputes boutique Powell Goldstein in Geneva and Washington, DC. The new members of the firm, in particular Daniel Price, were among the first to evangelise the use of bilateral investment treaties.

Price, who also worked in the US government, left the firm in 2011 to become a noteworthy independent arbitrator, but the Sidley practice has gone from strength to strength.

Early on, the practice scooped a number of investment treaty arbitrations, in addition to major World Trade Organization disputes work. It won one of the longest and most procedurally complex arbitrations against Argentina of the time (US$200 million, for Vivendi) and became a bigger name in the area. Price’s team on these cases included Stanimir Alexandrov, who went on to take the lead in much of the firm’s investor-state work.

Sidley’s commercial arbitration practice was kickstarted by the arrival in Geneva of two partners (US-trained Marc Palay from Winston & Strawn, and David Roney from Schellenberg Wittmer, both long-time residents in Switzerland). That side of the practice expanded considerably after they joined.

In 2013, Benno Kimmelman and Dana MacGrath – commercial arbitration specialists known for Latin American and energy work – joined the New York office from Allen & Overy. And in London, the team was joined by Matthew Shankland from Weil Gotshal & Manges, who has acted on high-profile disputes arising from the collapse of Lehman Brothers, including complex derivatives arbitrations.

The group’s Asia offering received a boost with the hire in 2016 of Friven Yeoh and his team in Hong Kong from O’Melveny & Myers.

Practice co-head Alexandrov retired from the firm in 2017 to focus on his increasingly prolific work as arbitrator, leaving the practice to be sterred by the two other co-heads, Kimmelman and Palay.

Network

The key offices for international arbitration are Geneva, New York, DC and London, with other members in Hong Kong, Singapore, Los Angeles and San Francisco. There’s also a Dallas office, staffed by ex-Weil lawyers, with a high turnover of oil and gas-related work.

Who uses it?

Sidley Austin is the kind of place that blue-chip companies – such as Philip Morris and Airbus – go to when they have “global” trade issues that require a multi-pronged attack. It also does a lot of work for governments, particularly in Latin America, and investors in BIT cases. On top of that it’s becoming popular for CIS-related commercial cases, in Europe.

Clients include Atomstroyexport (a subsidiary of Russia’s state-owned nuclear power company Rosatom), Berkeley HeartLab, Formosa Plastics, GATX Corporation and Russian aluminium producer Rusal. It’s acting for US private equity group LoneStar in a US$2.5 billion claim against South Korea; and for France’s Veolia in a €100 million claim against Lithuania over renewable energy services. Calgary-based energy company TransCanada retained it for a US$15 billion NAFTA claim against the United States over a controversial project to expand the Keystone oil pipeline, though the case was dropped after a newly elected President Trump approved the project.

On the state side, it’s acted for Costa Rica, Peru, Turkey and China (which recently added it to the panels of law firms it will instruct in investment and trade matters).

Notably it’s also acted for arbitral institutions such as the ICC and ICSID (representing the latter in US court proceedings when it was sued by US oil investor Jack Grynberg).

Track record

A team in Geneva and DC helped Atomstroyexport win €600 million in an ICC claim against Bulgaria’s national electricity company NEK – a politically sensitive dispute over a nuclear power plant that also gave rise to the threat of a treaty claim. NEK (represented by White & Case) paid the award in 2016.

Other eye-catching results have include a hat-trick of wins for Rusal in a long-running feud with Tajikistan’s state-owned aluminium company, Talco. The most significant of these was a US$275 million award for Rusal subsidiary Hamer Investment against Talco in 2013, a case heard under the Swiss Rules.

The same team helped another Rusal affiliate, Albaco, win US$71 million in an ICC case against a Talco shell company, CDH, defeating a mirror case brought against it at the SCC.

The New York office has also had wins for Trinidad and Tobago’s national oil company Petrotrin, including defeating a US$228 million LCIA claim by US investor World GTL in 2014.

In the investment treaty arena, the firm helped Turkey to defeat a US$100 million Energy Charter Treaty claim by Dutch investor Alapli Elektrik in 2012.

It helped Peru put an end to a pair of mammoth ICSID claims by French national Renée Levy. A US$7 billion claim over her family’s investments in a liquidated bank was rejected in 2014. A year later, her US$41 billion claim over real estate investments was thrown as an abuse of process.

In another ICSID case in 2015, it obtained a US$65 million award for Peruvian state agency Perupetro in a dispute with the Camisea consortium over royalties on gas exports from the country’s largest natural gas project. Sidley Austin was later instructed by a consortium led by the US’s Hunt Oil for a related ICC claim against the Camisea consortium.

Recent events

As mentioned, Alexandrov stepped away from the firm after 15 years to focus on his arbitrator practice. Following his departure, Marinn Carlson has taken over as head of investment arbitration.

In one of his last cases as counsel with the firm, Alexandrov helped Peru escape the bulk of a US$522 million treaty claim brought by Vancouver-based mining company Bear Creek. A tribunal awarded the company only US$30 million, representing its sunk costs in a silver mine concession that suffered an indirect expropriation.

Peru is using Sidley Austin again in two new ICSID cases: one is a US$300 million claim by a Spanish company over a deal to carry out vehicle inspection services in Lima and Callao; the other is a dispute with a construction consortium over a cancelled US$525 million contract to build an airport.

It helped Costa Rica secure the discontinuance of a DR-CAFTA claim brought by US real estate investors affected by measures to protect endangered turtles.

The New York team convinced a DC court to approve the transfer of interest in a US$22 million LCIA award to bypass a recently enacted law in Belize criminalising attempts to enforce awards against the state in foreign courts.

In Hong Kong, Yan Zhang and Desmond Ang were promoted to the partnership.

Client comment

William Spiegelberger, head of the international practice unit at Rusal in Moscow, commends Sidley’s performance on the Tajikistan cases. “Cross-examination at the hearing was particularly accomplished, and stood in marked contrast to what opposing counsel was able to do.”

He describes the team as “cost-effective” compared to the opponents and praises Marc Palay, Dorothee Schramm and their team for their affability and ability to work together.

Kevin Fillip, associate general counsel of STMicroelectronics, similarly notes the firm’s skill in cross-examination and says that Palay’s leadership was “superb”.

Natalia Artamonova of Atomstroyexport calls Palay “brilliant”.

Konstantin Kryazhevskikh, general counsel at Rosatom, says that the firm was efficient in preparing for the proceedings and its fees much less than those charged by lawyers to the other side.

Efraín Laureano, senior development expert at Mongolia Business Plus Initiative (part of the United States Agency for International Development) commends Sidley Austin’s “professionalism, effectiveness and commitment” in helping to drafting a new Mongolian arbitration law.

Insight

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