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GAR 100 - 11th Edition

Orrick Herrington & Sutcliffe

05 April 2018

The firm recruited a new global practice head in Geneva  

People in Who’s Who Legal 5
People in Future Leaders 1
Pending cases as counsel 23
Value of pending counsel work US$6.7 billion
Treaty cases 6
Current arbitrator appointments 27 (of which 13 are as sole or chair)
Lawyers sitting as arbitrator 4

Orrick’s international arbitration group began on the West Coast of the US, but only gained momentum during the 2000s when it branched into Europe.

In 2005, the firm picked up several members of the highly respected arbitration group at now-defunct firm Coudert Brothers, including some partners in London and Moscow, and the venerable Laurie Craig in Paris. A year later, it absorbed Rambaud Martel, one of Paris’s elite M&A boutiques, adding serious credibility in France. And in Germany it absorbed Hölters & Elsing – home to Siegfried Elsing, one of Germany’s pre-eminent practitioners and arbitrators.

The firm continued to make impressive lateral hires, including Laurent Jaeger, formerly of Latham & Watkins’ Paris office, in 2009, and Charles Kaplan in 2013, who had co-headed the international arbitration practice at Herbert Smith Freehills in Paris.

The practice launched in Geneva in 2015 with the hire of Vanessa Liborio from Akin Gump Strauss Hauer & Feld. Two years later, Akin Gump’s former practice head Charles Adams joined the same office after a stint as US ambassador to Finland. Adams now serves as global head of Orrick’s practice.

Network

The key offices for arbitration are Paris, London, Geneva, Düsseldorf, New York, Hong Kong and Tokyo, with other members of the group based in San Francisco (where the firm is headquartered) and Silicon Valley.

The wider firm has more than 25 offices across Europe, the US and Asia and an affiliated office in Abidjan, Ivory Coast.

Who uses it?

The firm’s strong Parisian arm counts several French-speaking countries among its clients, including Gabon and Guinea (which has been using it on a number of ICSID matters). It has advised mining companies in cases against Mauritania and Mali, and investors in Energy Charter Treaty claims against Spain and Italy over reforms to the renewable energy sector.

On the commercial side, it defended a subsidiary of Dow Chemical in a patent dispute with Germany’s Bayer. Norwegian telecoms company Telenor has repeatedly instructed Orrick since 2006 in disputes stemming from its turbulent business relationship with Russia’s Alfa Group. Engie, Ford Motors, Four Seasons Resorts, Bosch, Total and SGS are also clients.

Track record

The cases for Telenor saw Orrick winning at every step. At the outset, the firm obtained an anti-suit injunction in a New York court allowing an arbitration over a Ukrainian telecoms venture to go ahead. It then won the arbitration, confirmed the award in New York, and obtained contempt of court rulings and large fines against the opponent, Alfa Group, for non-compliance with the award.

Later, Telenor used Orrick again for an UNCITRAL claim against Alfa over some joint interests in Russia’s VimpelCom, which again went in Telenor’s favour. The parties settled in 2010 and created a new joint venture in Amsterdam. But the saga didn’t end there: they entered arbitration again later, with Orrick still behind Telenor in a new dispute over pre-emptive rights that was settled after hearings in 2012.

There have been some impressive defence wins on behalf of Guinea at ICSID. In 2014, it defeated a soft drinks producer’s US$120 million claim by showing there was no evidence that the claimant was under foreign control when it was established. In the following year, the firm knocked out a US$91 million claim by a real estate company, showing that the claimant didn’t qualify as a “foreign investor”.

In a third case in 2016, it helped Guinea knock out the bulk of a €160 million ICSID claim by port operator Getma at the jurisdictional stage (the investor won only €450,000). It has also helped the West African state to annul a €38.5 million OHADA award obtained by Getma in a parallel contract case and prevented it from being enforced in the US courts.

In France, Orrick was part of a co-counsel team that persuaded the Court of Cassation to uphold the annulment of a €403 million award in favour of controversial businessman Bernard Tapie against French state entity CDR on the grounds that it was procured by fraud. The firm also represented an Engie subsidiary in a landmark case that has clarified the power of France’s supreme administrative court to review awards arising from public works contracts.

Recent events

Following Charles Adams’ arrival as practice head in 2017, the firm further strengthened its Geneva offering in February 2018 with the hire of partner James Hargrove, the former head of the CIS and Russia disputes group at Eversheds Sutherland.

Besides the successes for Guinea against Getma mentioned above, the firm continues to work alongside DLA Piper defending the West African state in a US$5 billion ICSID claim by companies linked to embattled Israeli diamond tycoon Beny Steinmetz. In hearings held in May 2017, Steinmetz denied claims that he ordered the payment of bribes to procure mining rights in Guinea, alleging he is the victim of a conspiracy.

Yoshihiro Takatori led a Tokyo team which helped a Japanese electronics manufacturer to settle a dispute with its Hong Kong-based parts supplier at the Japan Commercial Arbitration Association – thought to be the first international case that the institution has administered.

A team led by Charles Kaplan in Paris is representing Germany’s Voigt & Collegen and Spain’s SolEs Badajoz in two Energy Charter Treaty claims against Spain over reforms to the state’s subsidy regime for solar power. The Milan and Rome offices are also teaming with King & Spalding to help investment fund ESPF bring an ECT claim against Italy over reforms to the same sector.

Other recent work includes acting for a tobacco client in a US$500 million ICC arbitration under Mexican law; and a Turkish contractor in a US$182 million ICC case seated in Doha relating to the construction of airport passenger terminal.

In Düsseldorf, the firm promoted Karsten Faulhaber, a lawyer with experience of M&A, joint venture and restructuring disputes, to equity partner.

Client comment

Antonino Zucco, head of the gas and fuels legal department of Enel, says the Italian company has used Orrick for the past five years in gas price renegotiations and arbitrations under long-term supply agreements. He says the firm has “a deep knowledge of the gas sector” and price review mechanisms. Orrick is Enel’s “first choice” for such cases in the region, and partner Charles Kaplan is “outstanding”.

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