The boutique’s defence of Russia saw the Yukos shareholders abandon their enforcement efforts in Belgium
|People in Who’s Who Legal||5|
|People in Future Leaders||1|
|Pending cases as counsel||6|
|Value of pending counsel work||US$70 million|
|Current arbitrator appointments||110 (of which 55 are as sole or chair)|
|Lawyers sitting as arbitrator||8|
Hanotiau & van den Berg was one of the earliest arbitration boutiques, founded in 2001 by Belgian Bernard Hanotiau, a former partner at CMS Derks Star Busmann in Brussels; and Dutch arbitrator Albert Jan van den Berg, formerly of Freshfields Bruckhaus Deringer in Amsterdam. They chose the boutique model partly to avoid the conflicts of interest that were part and parcel of practising at a large firm – and declared English the official language of the firm. Other founding partners still at the firm are Paul Lefebvre and Pascal Hollander.
Musing on the firm’s success at an event to mark its 10th anniversary in 2011, van den Berg said the firm had turned out to be “a much better proposition” than he thought. “When we set it up [without external financing] I’d have been happy to cover my costs. I’ve been delighted with the constant flow of business.”
A lot of its success can be attributed to canny hiring and the diversity of nationalities at the firm – almost half the lawyers are from foreign jurisdictions.
Over the past 16 years, the name partners have grown into two of the world’s foremost arbitrators, whose credentials hardly need restating. In every cycle of research for Who’s Who Legal: Arbitration, the pair finish among the most highly regarded individuals (in the 2016 edition, Hanotiau was named arbitration lawyer of the year).
Van den Berg is an acclaimed specialist on the New York Convention and served as president of the International Council for Commercial Arbitration (ICCA) from 2014 to 2016.
A few years ago, the firm quietly stopped taking instructions as counsel in investor-state arbitrations to avoid the risk of perceived issue conflicts arising from the partners’ work as arbitrators. The policy means the firm won’t act as counsel in arbitrations brought under investment treaties or domestic laws on foreign investment, or in ICSID annulment proceedings. It does, however, continue to act as counsel in commercial arbitrations as well as in set-aside proceedings in national courts.
It’s in this last capacity that the boutique achieved its highest-profile victory to date, when van den Berg helped Russia persuade a court in the Netherlands to set aside the US$50 billion Energy Charter Treaty award in favour of the former majority shareholders in Yukos.
When the firm opened in 2001, one of its immediate difficulties was its Brussels location. “We weren’t in London, New York or Paris, or one of the major centres of arbitration,” remembers Hanotiau. That actually proved a non-issue, but in any case the firm has since opened in a major arbitration hub: Singapore. There it has had offices in Maxwell Chambers since 2012.
Who uses it?
Russia and Croatia have been government clients. But the firm is coy about disclosing its commercial clients and few of its cases as counsel end up in the public domain, so it’s hard to provide a longer list.
As already mentioned, the firm achieved headline-grabbing results after being approached to handle Russia’s challenge to the US$50 billion Yukos awards. The District Court of The Hague annulled the award in 2016 after finding that Russia was not bound by the Energy Charter Treaty, which the state had never ratified. An appeal is pending.
In one of its final investor-state cases as counsel, the firm helped a family of Belgian investors win a US$2 million ICSID award against the east African state of Burundi for the indirect expropriation of a bank.
In the same year, van den Berg helped Croatia defend an UNCITRAL award in Dutch set-aside proceedings brought by Austrian casino operator Adria. The award, which rejected the investor’s €60 million claim, was upheld by the court.
In the wake of the set-aside of the Yukos award in The Hague, Hanotiau & van den Berg also helped Russia fend off the shareholders’ attempts to collect on the award in Belgium. In June 2017, the firm convinced a Belgian court to lift a freeze on Russian owned real estate and bank accounts in Brussels that had been granted two years earlier.
A few months later, the Yukos shareholders withdrew their enforcement proceedings in France and Belgium altogether, saying they “no longer made economic sense”. Van den berg says that now the enforcement “side-shows” have ended, focus will “rightly” return to the set-aside proceedings in The Hague.
Van den Berg also prevailed in a complaint on behalf of Russia against a former Dutch Supreme Court judge who had acted as an expert witness for the Yukos shareholders while still a member of the court.
The firm promoted Pierre Vermeire to partner and Maarten Draye to counsel. Of counsel Olivier Caprasse left the boutique after 15 years to set up an independent practice as counsel and arbitrator with less risk of conflicts.
The two name partners kept up their busy arbitrator practices. Hanotiau sat on an UNCITRAL tribunal that dismissed a a US$22.4 billion UNCITRAL claim brought against a Total subsidiary by two Russian provinces. He was also part of an ICC panel that cleared German energy group E.ON of a €321 million claim by French power utility Engie over nuclear power tax payments.
Van den Berg meanwhile was part of an ICSID panel that rejected a US$4 billion treaty claim against Algeria as an abuse of rights. He is also hearing a US$5 billion arbitration against Guinea over the revocation of mining licences and continues to preside over Vattenfall’s claim against Germany concerning the state’s phase-out of nuclear energy.