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GAR 100 - 11th Edition

Gibson Dunn & Crutcher

05 April 2018

The hire of an investment treaty specialist has brought a number of Spanish solar cases to the firm

People in Who’s Who Legal 1
People in Future Leaders 2
Pending cases as counsel 23
Value of pending counsel work US$20 billion
Treaty cases 11
Current arbitrator appointments 14 (of which 8 are as sole or chair)
Lawyers sitting as arbitrator 4

Gibson Dunn is one of the heavyweights of the US litigation scene, regularly appearing on high-stakes matters. Although not at the same level – and in some ways having to swim against the tide of the firm’s interest – the international arbitration group has been making increasing headway.

The core of the current practice formed between 2007 and 2008, with the lateral hires of Cyrus Benson from White & Case and Lord Falconer, the United Kingdom’s former secretary of state for justice. Laurence Shore joined in 2008, serving as co-head of the practice until his departure in 2013.

The practice bounced back later that year with the hire of Penny Madden (now a QC) and her team from Skadden, Arps, Slate, Meagher & Flom in London. The hire of Jeffrey Sullivan from Allen & Overy in 2017 has expanded the firm’s investment treaty expertise.

It has had a foothold in Hong Kong since 2010, when it hired former GE in-house counsel Kelly Austin.

Away from mainstream commercial work, Gibson Dunn enjoys a franchise for sports-related arbitration thanks to Maurice Suh, a partner in Los Angeles. Suh has defended numerous sports stars accused of doping violations, including disgraced Tour de France winner Floyd Landis.

Meanwhile, Gibson Dunn’s litigation team continues to be one of the first names on the list for anyone applying to the US courts to enforce or resist foreign judgments and awards.

Network

West Coast United States, London, Paris and Hong Kong for international arbitration. The firm has also opened an office in Singapore.

Who uses it?

It is acting for former affiliates of Yukos Oil Company in a pair of Energy Charter Treaty claims against Russia; and for Kuwaiti logistics firm Agility in the first-ever ICSID claim against Iraq. Other clients for investment treaty work include Egypt’s Global Telecom; Hong Kong mining company SouthGobi Resources (for a claim against Mongolia); and Zimbabwe’s second-largest telecoms operator.

The government of Djibouti used the firm in a high-value LCIA claim against DP World over a port terminal (and a related English court action that garnered headlines in the UK legal press).

Elsewhere it’s been retained by Marriott International, Citibank, Hyatt, UBS, Anglo American, Facebook, satellite services provider SES, Enel, Brazilian defence contractor Embraer, Aspen Technologies, Russia’s Vimpelcom and Russian former politician Ashot Egiazaryan.

The firm is lead counsel to Chevron in multiple litigations in the United States, Argentina, Brazil and Canada arising from the well-known US$9 billion oil pollution case brought by a group of indigenous plaintiffs in Ecuador.

Track record

Not long after arriving from Skadden, Penny Madden helped Orascom reach a US$4 billion deal with Algeria over ownership of mobile operator Djezzy, suspending a US$16 billion investment treaty claim.

A team led by Cy Benson helped an affiliate of Yukos Oil Company fend off a US$250 million ICC claim brought against it by Poland’s PKN Orlen over the sale of a Lithuanian refinery. PKN challenged the award in the English courts, but the case was dismissed.

In another Yukos matter, litigators in the New York office persuaded a court to confirm a US$74 million award that Luxembourg-based Yukos Capital won against Rosneft subsidiary Samaraneftegaz in compensation for unpaid loans. The firm had already obtained an attachment order against Rosneft (and a US$600 million security) pending the award.

In 2014, the firm continued its winning streak for Yukos when it convinced a New York court to issue an order against Samaraneftegaz, restraining it from moving assets until it satisfied an ICC award worth US$186 million.

Some of the firm’s best-known victories have been in litigation for Chevron. The US oil company asked the firm to obtain out-takes from Crude, the 2009 documentary charting the environmental litigation against Chevron in Ecuador. The evidence the firm obtained helped to persuade a New York district court to rule that the Ecuadorean proceeding had been tainted by corruption – a decision upheld in 2016 by the Second Circuit.

The litigation team also scored a victory for a group of holdout creditors from Argentina’s 2001 sovereign debt default in a well-known US appeals court action against the state, NML Capital v Argentina.

Recent events

The firm has been acting for claimants in two UNCITRAL claims relating to the expropriation of Yukos, securing decisions that Russia is bound by the provisional application of the Energy Charter Treaty. One of the cases, worth US$13 billion, resumed in August 2017 after a Swiss court ruled that Russia’s challenge to a jurisdictional decision was premature. The second case, worth US$700 million, has given rise to a challenge in the Canadian courts.

Distressed Canadian mining company Crystallex has been using the firm in multipronged efforts to collect on a US$1.39 billion ICSID award against Venezuela (other firms represented the claimant in the arbitration). These include litigation in Delaware against a subsidiary of the country’s national oil and gas company PDVSA; and an attempt to attach funds held by the Bank of New York Mellon. The government reached a settlement with Crystallex in late 2017 but reportedly failed to follow through on a promised payment.

Gibson Dunn lawyers helped a United Arab Emirates consortium including Dana Gas and Crescent Petroleum agree a US$1 billion settlement with the Kurdistan regional government of Iraq and obtain new oil and gas rights – terminating an LCIA arbitration where claims stood at US$39 billion.

However, it could not prevent Djibouti from losing a claim against a Dubai state-owned ports operator after an LCIA tribunal rejected allegations that a concession to operate Africa’s largest container terminal was secured through bribery.

The London office welcomed partner Jeffrey Sullivan from Allen & Overy, an investment treaty specialist who has represented investors in mutliple claims against Spain over reforms to the country’s renewable energy subsidy regime. In one of these, he helped secure a €128 million Energy Charter Treaty award for British investment fund Eiser Infrastructure in 2017. Gibson Dunn is now helping Eiser to defend the award in annulment proceedings and is representing Luxembourg’s Infracapital in another renewable energy claim against Spain.

Hong-Kong based partner Robert Pé left to pursue a new role advising Myanmar on law reform.

Gibson Dunn promoted New York-based practitioner Rahim Moloo to partner and hired Robert Nelson from Shearman & Sterling as partner in its San Francisco office.

Client comment

Joaquín Valcárcel Martínez from Enel commended an “outstandingly skilled, fully available team capable of adapting efficiently to the evolving dynamics of the case”.

He singled out Cyrus Benson, praising “his ability to quickly translate complex legal discussion into easily understandable and compelling reasoning”.

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