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GAR 100 - 11th Edition

Jones Day

05 April 2018

Taking on Kazakhstan and Panama at ICSID

People in Who’s Who Legal 3
People in Future Leaders 7
Pending cases as counsel 131
Value of pending counsel work US$18 billion
Treaty cases 10
Current arbitrator appointments
19 (of which 16 are 
as sole or chair)
Lawyers sitting as arbitrator  8

Jones Day has its origins in the United States but is now just as well known for its arbitration offering in Europe. The Paris office in particular has long been regarded as a serious player in ICC work – partner Michael Bühler is co-author of a handbook on ICC arbitration and co-headed the drafting subcommittee for the revised ICC rules.

In Madrid, partner Mercedes Fernández, who cut her teeth at Bernardo Cremades’ firm, has a track record for investment treaty claims with a Spanish angle.

In the United States, the firm represented the claimant in the first ever investor-state arbitration against the United States under Chapter 11 of the North American Free Trade Agreement. It went on to act in important standard-setting cases under the same treaty, such as Loewen v US.

A restructuring in 2012 brought all of the firm’s lawyers with international arbitration experience together under a new global disputes group led by partner Tim Cullen in Washington, DC. The group embarked on a major hiring programme, adding big names such as Jean-Pierre Harb from Baker McKenzie in Paris and Baiju Vasani from Crowell & Moring in Washington, DC.

DC-based partner Gregory Shumaker took over from Cullen as head of global disputes in 2015.

Network

The main offices for arbitration are London, Paris, Madrid, Washington, DC, New York, Dubai, Singapore and Sydney – with other partners based in Amsterdam, Brussels, Düsseldorf, Frankfurt, Miami, Moscow, Munich, Dallas, Irvine, Los Angeles, Mexico City, Pittsburgh, San Francisco, Perth and Taipei.

Who uses it?

Clients in investor-state cases include Enersis (a Chilean subsidiary of Endesa) and Spanish water company Urbaser for claims against Argentina; Kazakh private equity group Visor for a claim against Uzbekistan; and Canada’s World Wide Minerals and Alhambra Resources for disputes with Kazakhstan.

As for governments, it’s representing Kyrgyzstan in a pair of commercial arbitrations and is on the Chinese government’s panel of preferred counsel for investment treaty advice. It has advised Russia’s Gazprom Export, China’s Petrocom and the government of Laos.

Other clients include Chevron (in many aspects of its long-running US$9 billion dispute over liability for environmental pollution in the Ecuadorean Amazon), Siemens, Russian mining company AGD, US paint retailer Sherwin Williams and Mexican cement company Cemex.

Track record

In 2015, a Paris team helped Egypt’s Orascom Construction Industries and a Lebanese partner win US$80 million plus interest and costs in a Cairo-seated case concerning a high-profile real estate venture in the Egyptian capital.

It has helped Cemex win more than €40 million in damages and costs in an ICC claim against Austria’s largest construction group, Strabag. Bühler handled the case, with the award later upheld by an Austrian court.

The firm negotiated a favourable end to a dispute over a billion-dollar diamond find in Russia, on behalf of AGD. The client’s business partner, Archangel Diamond Corporation, had initiated arbitration in Stockholm.

The firm obtained a ground-breaking jurisdictional ruling in 2015 on behalf of Toronto-based mining company World Wide Minerals in a claim against Kazakhstan over uranium investments, with an UNCITRAL panel ruling that the state was a legal successor to the Soviet Union’s commitments under a bilateral investment treaty with Canada. An award on the merits is pending.

In 2013, the firm advised regular client Gazprom Export in gas price review proceedings against the Czech arm of RWE Transgas. Arbitrators in Austria issued a “compromise” award, reworking the gas price formula in the two companies’ contracts, but rejecting all other claims by RWE. It marked the first gas price dispute against Gazprom Export that reached the award stage.

Going further back, the Madrid office scored a win for Técnicas Medioambientales against Mexico in 2003 in the first ICSID arbitration brought under the Spain-Mexico bilateral investment treaty. Referred to as the Tecmed case, the proceeding helped define the scope of the fair and equitable treatment standard.

In another case against Mexico concerning a hazardous waste landfill, the firm won US$47 million for French waste management company Veolia.

Recent events

Jones Day is representing French satellite company Eutelsat in an ICSID claim against Mexico over regulatory measures that reserved certain frequencies for government use.

It is acting for a Ukrainian client in an ICSID claim against Latvia over the bankruptcy of a metallurgical plant, as co-counsel with Kiev firm Asters.

Puerto Rico-based Omega Engineering and its CEO Oscar Rivera have retained it for an ICSID claim against Panama after they became the subject of criminal proceedings linked to a corruption investigation targeting a former president of the country.

It is representing a Luxembourg company controlled by the jailed former director general of Cameroon’s national airline in a bid to revive an ICSID claim against the African state. Annulment proceedings got under way in October 2017 after a tribunal threw out the case earlier in the year. The dispute concerns the expropriation of a bank.

The firm defeated Uzbekistan’s attempt to have a US$500 million claim over the nationalisation of two cement plants thrown out at the jurisdictional stage. The claimants are 12 Kazakh partners in one of central Asia’s largest private equity companies. The state was also ordered to pay costs because of the conduct of its counsel.

It saw off a US$700 million ICC claim against a US Fortune 250 client over the failure of a US$2 billion transaction; and a US$217 million UNCITRAL claim by a contractor against a client in the energy sector over an offshore construction project in Africa.

Jones Day defended a Taiwanese solar power company in a Frankfurt-seated ICC case over the supply of silicon wafers, winning an order that the claimant perform its obligations under the contract.

A Spanish client is using it for an UNCITRAL claim against Samsung over the development of an iron ore mine in Western Australia.

An ongoing ICC matter is for the North American Coal Corporation, in a dispute over one of India’s biggest coal mines.

In the California courts, it helped Chevron win a stay of a US$1.5 billion litigation pending the outcome of a Perth-seated UNCITRAL arbitration over the construction of a jetty for a liquefied natural gas project in Western Australia.

Sylvia Tonova in London and Marcus Salvato Quintanilla in San Francisco were promoted to the partnership, while Nicole Dolenz became of counsel in Paris.

Dubai partner Damian Watkin, who led the UAE construction and energy disputes practice, left the firm in February 2017 and is now at US firm Bracewell in London.

The firm played an important role in recent reforms to the arbitration law of OHADA, the African business law organisation. A team led by Bühler prepared the draft texts that were adopted after review by local legal minds.

Vasani is co-leading a task force to help the Djibouti Chamber of Commerce establish an arbitration centre. Brussels partner Vanessa Foncke joined the board of directors at Belgian institution CEPANI.

Client comment

Belgian insurance company Ageas has been using the firm in an ICC case against Royal Bank of Scotland. General counsel Johan de Bruycker says he is “impressed with the technical knowledge and strategic insight” the firm has shown. He singles out Vanessa Fonck in Brussels, “who is extremely hands on, shows an in-depth knowledge of the file and is pleasant to work with.”

Chevron senior counsel Arjun Agarwal used a Jones Day team for a London-seated arbitration against a contractor related to a West Africa offshore oil and gas project. He said the team achieved a “very favourable result” and that San Francisco-based partner Stephen O’Neal “managed the preparation and execution effort very effectively”.

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