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GAR 100 - 11th Edition

GST

05 April 2018

The Miami boutique added Pakistan to its roster of state clients

People in Future Leaders 2
Pending cases as counsel 11
Value of pending counsel work US$22.3 billion
Treaty cases 16
Current arbitrator appointments
11 (of which 6 are 
as sole or chair)
Lawyers sitting as arbitrator  3

GST was set up in 2009, when Florida-based lawyer Quinn Smith joined forces with Brazilian practitioner Mauricio Gomm Santos – then a consultant at US firm Buchanan Ingersoll & Rooney and law professor at the University of Miami.

Starting life as Smith International Legal Services, the firm wanted to carve a niche as an adviser to Brazilian individuals and businesses expanding internationally, as well as US companies doing business in Latin America. Its early work saw it involved in an ICC dispute and litigation between the United States’ Bechtel and a Brazilian state power company.

The practice really began to take off in 2012 with the arrival of of counsel Diego Gosis, an Argentine lawyer who has acted as external counsel to his government in more than 20 investment arbitrations since 2006. Gosis also sits as arbitrator and retains a separate of counsel role with Guglielmino & Asociados, a Buenos Aires firm set up by the former head of Argentina’s in-house defence team in investor-state cases.

In 2013, Gomm Santos became a full partner of the firm, leading to a rebrand as Gomm & Smith. An additional partner came on board in 2016 – Ignacio Torterola, the Argentine government’s former ICSID liaison officer. That hire led to the firm’s latest rebrand as GST, also giving it a presence in Washington, DC for the first time.

Torterola spent nine years at Argentina’s treasury attorney general’s office defending the state against investment treaty claims, and has also worked at Foley Hoag and Brown Rudnick.

Smith, who lectures on arbitration at a Brazilian university, holds roles in various young practitioners’ groups at the ICDR and ICC, while Gomm Santos is a founding member and former director of the Brazilian Arbitration Committee and sits on its advisory council.

Network

In addition to its Miami office, the boutique has an address in New York, where Gomm Santos is admitted to practise (he operates as a foreign legal consultant in Florida), and now Washington, DC.

Who uses it?

Pakistan, Venezuela and Bolivia have instructed the firm on a number of treaty and commercial matters. Governments often bring the firm in at a late stage in cases that haven’t been going their way. In one ICSID matter, Bolivia retained it as replacement counsel only five weeks before the final hearing.

Other engagements have come from a sovereign instrumentality of Argentina, several Brazilian manufacturers and families, and an investment bank in Africa. A South American state-owned bank instructed the firm to assist in recouping US$60 million in funds stolen by a bank official. US investors have used the firm for a US court challenge to a DR-CAFTA award in favour of Costa Rica.

Track record

In their former roles advising the Argentine government, Gosis and Torterola had a hand in some landmark wins at ICSID, including the annulment of awards against the state in the Vivendi I, Enron and CMS cases.

More recently, Gosis has helped to obtain some spectacular results for Venezuela at ICSID in collaboration with Guglielmino & Asociados. The team defeated a billion-dollar claim by subsidiaries of a US bottlemaker, with the tribunal ruling for the first time that claims filed after Venezuela’s denunciation of the ICSID Convention are inadmissible.

The same team helped to knock out a US$400 million claim relating to a hotel and cable car investment – with the tribunal concluding that the claimant was not a protected investor because as a trustee it did not own the disputed assets. The award is now the subject of annulment proceedings.

Even where the state client has been on the losing side, the team has succeeded in significantly reducing the size of the damages. Its defence of Venezuela in a US$150 million claim over a Caribbean island airport led to a final award against the state worth US$34 million.

For Bolivia, GST reduced a US$285 million ICSID claim by Chilean mining company Quiborax to an award of US$48 million, and managed to keep a stay of enforcement in place while the state pursues an annulment application.

GST also helped Bolivian state mining entity Empresa Siderúrgica del Mutún overturn a US$22.5 million award in favour of India’s Jindal Steel in the Bolivian courts in 2015.

Recent events

GST replaced Allen & Overy as counsel to Pakistan in a pair of ICSID cases. One of the cases, brought by Australia’s Tethyan Copper Company, is at the damages phase, the tribunal having declared the state liable for refusing a mining lease application (this happened before GST came on board). Tethyan is reportedly claiming over US$11 billion in damages. GST recently failed in an attempt to have all three arbitrators disqualified.

In the other ICSID case, Pakistan is seeking to annul a US$800 million award compensating a Turkish company for the detention of power generation vessels during an energy crisis in Karachi.

GST continues to advise Venezuela’s ministry of defence in a US$450 million dispute with US shipbuilder Huntington Ingalls relating to repairs on two naval frigates. A final award from a tribunal seated in Rio de Janeiro is expected soon.

Venezuela is using the firm in a bid to annul a pair of ICSID awards in favour of Luxembourg-based steelmaker Tenaris (alongside Foley Hoag, which advised in the original arbitration).

Venezuela has also retained it in a pair of investment treaty cases brought by a Spanish-Venezuelan businessman and his family. The tribunal recently ordered the third party-funded claimants to prove they have sufficient assets to pay costs if they lose.

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