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GAR 100 - 11th Edition

Lalive

05 April 2018

Saw off Russia’s jurisdictional challenge to a US$13 billion claim

People in Who’s Who Legal 9
People in Future Leaders 7
Pending cases as counsel 43
Value of pending counsel work US$16.2 billion
Treaty cases 11
Current arbitrator appointments 63 (of which 36 are as sole or chair)
Lawyers sitting as arbitrator 12

Lalive is one of the oldest international arbitration practices in the world, having operated in Geneva since the 1950s. The firm takes its name from two brothers: the late Jean-Flavien and Pierre Lalive. Its reputation in the field is mostly down to Pierre, who was described in Dealing in Virtue (Yves Dezalay and Bryant Garth’s sociological study of private justice in the commercial sphere) as the “grand old man of Swiss arbitration”. He died in 2014 aged 91.

Under the brothers’ leadership, members of the firm participated in some of the first major international arbitrations that followed nationalisations by petrol-states, including Sapphire International Petroleum v National Iranian Oil Company, Texaco v Libya and Kuwait v Aminoil. It also acted in early ICSID cases and state-to-state disputes before the International Court of Justice.

The firm relaunched in 1994, bringing on board partners Michael E Schneider and Teresa Giovannini. Schneider, a former president of the Swiss Arbitration Association who now serves as vice president of UNCITRAL, is arguably the firm’s figurehead today. Under him, Lalive continues to rule the roost in Switzerland, with arguably the largest team of full-time arbitration specialists of any Swiss firm – including such well-respected figures as Veijo Heiskanen, Matthias Scherer, Domitille Baizeau and Bernd Ehle.

Long-based in Geneva, these days the firm is increasingly active in Zurich, where it recruited Marc Veit from Walder Wyss in 2014.

Today, the firm has a reputation in the field to rival that of major international law firms (as its continued presence in the GAR 30 attests). The firm prioritises global commercial and investment cases: that is, work with no strong nexus to Switzerland. It has assembled a multinational, multilingual team of lawyers, similar to those found at Shearman & Sterling and Freshfields Bruckhaus Deringer, where many Lalive lawyers trained. It seeks very little co-counsel work of the type other Swiss firms regularly undertake. It also has a strong focus on public international law, in which Heiskanen has particular expertise.

Network

As well as offices in Geneva and Zurich, the firm has had a presence in the Qatari capital of Doha since 2006.

Who uses it?

Like most Swiss firms, Lalive doesn’t like to name clients, but the governments of Switzerland, Mauritius, Ecuador, Romania and Turkey are known to have used the firm for investment treaty work. Turkish state pipeline company Botas¸ is one of many clients to have used the firm in gas price review cases.

Other clients on the public record include Polish mobile operator PTC; Swiss energy trader EFT; Hong Kong oil and gas company Petrotrans (for a claim against Ethiopia); and US tobacco group Philip Morris.

Track record

One of the firm’s biggest recent successes was for Turkey’s Botas¸ in a price review claim against the National Iranian Gas Company. Lalive secured a final award in 2016 granting the client a 13.3% retroactive cut in price of gas. Iran honoured the award with US$1.9 billion worth of free gas deliveries to compensate Botas¸ for overpayments, with the Turkish company set to make billions more in savings over the life of the contract.

Another huge case for Turkey saw Lalive defeat a US$3.5 billion Energy Charter Treaty claim – part of the state’s long-running feud with the family of Turkish businessman Cem Uzan over a hydropower investment. An SCC tribunal threw out Uzan’s latest claim at the jurisdictional stage in 2016 after finding that he wasn’t a foreign investor at the time he mae disputed investment despite his later residence in the UK and France.

An unrelated ICSID case against Turkey saw Lalive win the dismissal of a real estate investor’s claims in 2014 on the grounds that the actions of majority state-owned entity weren’t attributable to the state.

The firm has also helped Romania avoid substantial payouts on more than one occasion. In 2015, it knocked out the bulk of a €440 million ICSID claim brought against the state by a US investor in a hotel and press distribution business. The claimant received just €8 million plus interest.

In another long-running case for Romania that ended in 2013, an ICSID tribunal refused to award any damages to oil investor Rompetrol despite holding the state liable for irregularities in a criminal investigation.

Among its successes in court, the firm was on the winning side in Swiss court proceedings arising from the bitter Elektrim v Vivendi case. It has managed the rare feat in Swiss practice of obtaining stays of enforcement on more than one occasion.

Recent events

The firm has been retained by Qatari government entity the National Human Rights Committee to provide representation for parties seeking to pursue claims relating to the boycott of Qatar by Saudi Arabia, the UAE and Bahrain in June 2017.

Another Middle Eastern state entity has also retained it for an ICC case over a major transport infrastructure project. Latvia has again turned to the firm for two investment treaty matters.

It is acting for US-Russian businessman Ihor Boyko in a US$100 million UNCITRAL claim against Ukraine over the expropriation of a chocolate factory, and won an emergency order for the protection of a client who claims to have been violently beaten while in the custody of Ukrainian police.

In the Swiss Supreme Court, it defeated Russia’s attempt to challenge a jurisdictional ruling in one of the “second wave” Yukos cases, a US$13 billion Energy Charter Treaty claim by Luxembourg company Yukos Capital. The court said the challenge was premature.

It named four new counsel in Geneva at the start of 2018 – David Guerra Bonifacio, Catherine Anne Kunz, Christophe Guibert de Bruet and Lorraine de Germiny. Heiskanen was named to the board of the Arbitration Institute of the Stockholm Chamber of Commerce.

Philipp Habegger, who joined the Zurich office from Walder Wyss at the same time as Marc Veit, left at the end of 2016 to set up an independent practice.

Client comment

A client describes Lalive as “impeccable” – praising the “work and cohesion” among team members as a unique selling point over other firms. Noradèle Radjai is “brilliant and relentless” and a “lawyer of the highest calibre”.

An anonymous state client described Veijo Heiskanen as “a master in international investment disputes”. Matthias Scherer “calmly handles the hardest issues”, while counsel Laura Halonen is a “perfect lawyer – definitely one for the future”.

Insight

Reviews

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

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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