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GAR 100 - 11th Edition

McMillan

05 April 2018

A leading Canadian firm for investor-state disputes and local enforcement issues

People in Future Leaders 1
Pending cases as counsel 5
Value of pending counsel work US$400 million
Treaty cases 1
Current arbitrator appointments 1 (of which 1 are as sole or chair)
Lawyers sitting as arbitrator 1

A leading Canadian firm for investor-state disputes and local enforcement issues

McMillan’s international arbitration practice developed around leading Canadian arbitrators J William Rowley QC and Robert Wisner. Rowley, who chairs GAR’s editorial board, retired from the partnership in 2009, and cut his remaining ties with the firm in 2014.

Wisner returned to the firm’s Toronto office in 2007 after many years at investment arbitration boutique Appleton & Associates in Washington, DC. He now co-chairs the international arbitration practice from Toronto with partner Brad Hanna.

Other names to know include Toronto partners Scott Maidment and Markus Koehnen, and Montreal partner Éric Vallières, who specialises in aviation disputes. Max Mendelsohn, also in the Montreal office, regularly serves as arbitrator.

Who uses it?

The group acts for Canadian and international mining companies in investment disputes. Clients that can be named include Glencore, Copper Mesa, Brilliant Resources, aircraft maintenance company Kelowna Flightcraft, automotive supplier Magna and the International Air Transport Association . The firm acted for a consortium of insurers in cases arising out of 9/11.

Track record

In 2016, the firm helped Vancouver-based Copper Mesa win US$24 million in an investment treaty claim against Ecuador over the expropriation of two copper reserves – though the tribunal reduced the damages in view of the violence inflicted on anti-mining protesters by a security force hired by the claimant. Ecuador is challenging the award in the Dutch courts while the client pursues US enforcement proceedings.

McMillan has had a fair amount of success in getting disputes thrown out early or settled. In 2015, the firm helped Brilliant Resources (now Founders Advantage) settle an US$80 million ICC claim against Equatorial Guinea concerning an exploration services agreement. The client dropped the claim in return for a cash payment of US$31.5 million.

Broadly, the firm says it has helped mining, petrochemical and automotive clients settle ICC claims totalling US$100 million, by negotiating new contractual terms that would preserve ongoing business relationships.

The firm has also scored significant victories in enforcement proceedings. For instance, it helped the US’s Cargill defend a US$77 million award against Mexico before Canada’s Supreme Court in 2012, defeating arguments by all three NAFTA states that the arbitrators exceeded their jurisdiction.

It also defended an ICC award in the landmark case Corporacion Transnacional v STET, which established that a deferential standard of review should be applied to international arbitral awards in Canada.

Wisner helped Turkish construction company Entes to enforce a US$23 million UNCITRAL award against Kyrgyzstan in the Ontario courts – trouncing the state’s arguments that its own external counsel in the arbitration had failed to disclose a conflict of interests.

Recent events

Wisner represented minority shareholders of Eco Oro Minerals in Canadian litigation in which they sought to challenge a third-party funding arrangment for an ICSID claim the mining company is pursuing against Colombia. Eco Oro, its funders and the objecting shareholders announced a global settlement of the litigation in August 2017 that would see a reconstitution of the company’s board of directors and allow all shareholders to participate in the proceeds of the arbitration.

The firm also recently defended Ikea against an UNCITRAL claim seated in Toronto; and a patent licensee in an ICC case seated in New York.

McMillan has paired up with another GAR 100 firm, Milbank, Tweed, Hadley & McCloy, to advise Canada’s Primero Mining on a potential NAFTA claim against Mexico relating to a tax on revenues from a silver mine.

Geoff Moysa, an active member of the international arbitration group, was promoted to the partnership. Markus Koehnen, who joined the firm in 1988, was appointed to the Ontario Superior Court of Justice.

Insight

Reviews

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

Meaar reviews banner 1024 300 230x67

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