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GAR 100 - 11th Edition

Milbank Tweed Hadley & McCloy

05 April 2018

Secured another impressive win for Mongolia

People in Future Leaders 1
Pending cases as counsel 9
Value of pending counsel work US$7.5 billion
Treaty cases 1
Current arbitrator appointments 2 (of which 0 are as sole or chair)
Lawyers sitting as arbitrator 1

Milbank Tweed’s international arbitration practice grew from the white-shoe firm’s long-standing project finance prowess, which has expanded globally; it regularly wins awards for its work in Asia. In one of the firm’s first forays into international arbitration, named partner John McCloy acted for US oil companies on the arbitrations that followed the nationalisations in Libya. Since then, the firm has appeared regularly in commercial arbitrations – often on project matters – and has also acquired expertise in investment law work, including Energy Charter Treaty disputes.

These days, Washington, DC-based partner Michael Nolan leads the practice and receives enthusiastic plaudits from clients. He sits on the board of the American Arbitration Association and the panel of ICSID arbitrators.

The firm established a presence in London when it hired former DLA Piper partners Julian Stait and Tom Canning in 2009 and 2010 respectively. Stait is known for his regulatory and investigations work, while Canning has experience in energy and infrastructure disputes.

Network

The main offices for international arbitration are Washington, DC, and London, though there are also members of the group in New York. The wider firm has offices in Los Angeles, Frankfurt, Munich, Beijing, Hong Kong, Tokyo, Seoul, Singapore and São Paulo.

Who uses it?

On the commercial side, Milbank has advised Bayer Cropscience; Bloomberry Hotels and Resorts (in a dispute relating to a casino in the Philippines); US private equity firm Cerberus; Bermuda’s Asia Broadcast Satellite; Japan’s Chubu Electric; India’s Essar Group in various matters in the steel industry; and satellite television company DirecTV. It has also represented Atlantic LNG in a major gas-pricing arbitration and related court actions; and acts for various Asian banks in construction disputes arising from projects in Singapore and Indonesia.

On the investor-state front, Milbank has represented claimants in ICSID cases against Venezuela and the Philippines; and defended Mongolia in several high-stakes cases.

Track record

The firm obtained a US$455 million award in 2015 for its client Bayer Cropscience in a patent dispute with Dow Agrosciences relating to a herbicide-resistant gene used in genetically modified crops. The award was upheld by a US appeal court in March 2017, with the US Supreme Court refusing Dow leave to appeal the ruling later that year.

Back in 2011, Milbank helped Mongolia to defeat a US$1 billion claim over a windfall profit tax. Although the panel did uphold a less substantial claim, the Russian claimants decided to abandon the case all the same. The firm also helped Mongolia settle an Energy Charter Treaty claim back in 2006, and helped it prevail in another case (see below).

Another eye-catching result came in 2010 when – along with various other firms, including K&L Gates and King & Spalding – it persuaded an ICSID ad hoc committee to annul an award blocking their client Fraport from pursuing a claim against the Philippines over an airport concession. The annulment was shortlisted for “Win of the Year” at the first GAR Awards in 2011. However, Fraport’s resubmitted claim for US$425 million was dismissed in 2014.

Recent events

Mongolia’s faith in Milbank was rewarded once again in 2017 when it knocked out a US$500 million bilateral investment treaty claim brought by three Chinese state-owned entities at the Permanent Court of Arbitration. Victory for the state was crucial – the clam was worth a quarter of the state’s annual budget. The case, which concerned the cancellation of a mining licence for an iron ore deposit, turned on language found in a number of other Communist-era Chinese BITs and therefore may have implications for future treaty claims. A challenge to the award is pending in the US courts.

The firm secured a partial win for Bermudan satellite operator ABS in an ICC dispute with a South Korean telecoms company. The tribunal ruled that ABS possessed a valid title to a satellite it purchased from KT Corporation and also ordered the South Korean party to stop interfering with the satellite operation. An award on damages is yet to come.

One of Turkey’s largest state-owned banks, Ziraat Bank, is using the firm in a US$2.8 billion shareholder dispute concerning ownership of Turkey’s national mobile operator Turkcell, which has been playing out in LCIA arbitrations and court proceedings in the British Virgin Islands and before the UK Privy Council.

Client comment

The Mongolian government’s treatment of the firm speaks volumes. Milbank lawyers were awarded official proclamations of gratitude by the Mongolian justice minister in 2011 at a surprise ceremony in Ulan Bator. The minister told the team: “I prayed to the mountain every day that you will win for us. Now I thank the mountain every day that you have.”

“What impressed me over so many years is the constant high level of quality and dedication in all aspects of Michael Nolan’s team to win this case and to do really everything to be successful,” says Fraport’s Peter Henkel. “We have received value for money.”

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