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GAR 100 - 11th Edition

Freshfields Bruckhaus Deringer

05 April 2018

The firm enjoyed a run of victories against Venezuela, Kyrgyzstan and Argentina while scooping up instructions for a trio of claims against Croatia

People in Who’s Who Legal 19
People in Future Leaders 18
Pending cases as counsel 204
Value of pending counsel work US$159 billion
Treaty cases 45
Current arbitrator appointments
18 (of which 12 are 
as sole or chair)
Lawyers sitting as arbitrator  20

The firm enjoyed a run of victories against Venezuela, Kyrgyzstan and Argentina while scooping up instructions for a trio of claims against Croatia

Freshfields Bruckhaus Deringer topped every edition of the GAR 30 ranking between 2008 and 2014 and more recently has been second only to one firm, White & Case.

Its success stems partly from having been among the first to enter the field. Back in the late 1970s, two of the firm’s London partners, Alan Redfern and Martin Hunter, found themselves representing Kuwait in an arbitration with US company Aminoil over the termination of an oil concession. It remains a leading public international law case.

The experience convinced Redfern and Hunter to pitch the idea that the firm treat international arbitration as a discrete skill set, fenced off from litigation. That in turn led them to propose to Jan Paulsson (a rising star of the Paris arbitration world whom they’d met while working on Aminoil) that he join their project. A London–Paris connection would make sense, they reasoned, as Paris was where the action was.

So before most firms even had one partner that “specialised” in this area, Freshfields had three – in charge of their own stand-alone international arbitration group.

The next 10 years saw strong growth, fuelled by a string of major cases (international arbitration and public international law) and by the gravitational pull of Paulsson’s reputation, which attracted young lawyers from around the world curious to try this “new and sexy” area of law. Freshfields became an unofficial university for international arbitration (ask many of the big names at other practices where they got their start and you’ll hear something like “in Paris, working for Jan”).

Paulsson also recruited the eminent Lucy Reed from the US Department of State, who became his co-chair. Of course, Paulsson and Reed weren’t the only ones building a name for themselves in international arbitration during this period. Where they seem to have differed from their rivals at other firms was in their willingness not to micromanage or insist on signing every brief (something a few big practices struggle with to this day).

As a result, from 1999 onwards, a generation of homegrown international arbitration partners emerged, many of whom have appeared in GAR’s “45 under 45” rankings.

Initially very Paris-centric, the practice began to relocate some of its newer names to the US, the UK, the Middle East and Asia. By 2012, Reed and Paulsson had built a network of international arbitration teams dotted around the world.

At this point, Paulsson was well past the Freshfields retirement age. In 2013, it was agreed that the time was right for him to part company from the practice that had developed around him.

A year later, two people who were seen as potential successors to Paulsson also left the firm: Constantine Partasides and Georgios Petrochilos. They left to join Paulsson at a new shop: Three Crowns.

Freshfields responded by appointing Nigel Blackaby as the new co-head of the group alongside Reed. Blackaby, based in Washington, DC, has been with the firm for more than 20 years and has long been at the forefront of its Latin America-related investment treaty work.

As of 2016, he leads the group alone, after Reed retired from the partnership to accept an academic post in Singapore. She retains a consulting role with Freshfields.

Another veteran partner, Nigel Rawding, now heads the London arbitration practice, which has been further strengthened by the relocation of Reza Mohtashami from Dubai and the hire of Will Thomas (former head of international arbitration at Eversheds) in 2016. Paris-based Ben Juratowitch co-heads the public international law group. Rawding, Juratowitch and Mohtashami have all recently been appointed QCs, along with Paris-based partner Peter Turner.

Network

The main locations for the international arbitration team are London, Paris, various German and Austrian offices, New York, Washington, Dubai, Hong Kong and Singapore. Madrid, Milan, Moscow, Rome and Amsterdam are more peripheral, but nevertheless play their part.

Who uses it?

The client list is a who’s who of states and global corporations. Of late, a lot have been energy companies. One reason for this is gas-pricing arbitrations, a field in which the practice was one of the first to build a name.

Clients (current and past) include Abertis, Alpiq, Anglo American, AstraZeneca, BG Group, Boeing Satellite Systems, BP, China National Offshore Oil Corporation, CMS Energy, ConocoPhillips, Credit Suisse, Crescent Petroleum, Danone Asia, Deutsche Bank, Dubailand, Electrabel, Eni, EVN, Maersk Oil, MTN Group, Marubeni Corporation, National Grid, Repsol, Rurelec, Shell, Siemens, Tata Group, Techint, Tiffany, Total and Tullow Oil.

The practice also represents governments. Notable states that have instructed it include Cambodia (for the state’s first ICSID matter), Chile, Guatemala, Grenada, Kenya, Romania, St Lucia, South Africa (on a case relating to black-empowerment policies), Tanzania, Turkey and Vietnam.

Lately it’s also been acting for state entities including Brazil’s national oil and gas company, Petrobras (in a claim against Ecuador) and Oman’s State General Reserve Fund (in an ICSID case against Bulgaria).

Track record

Freshfields certainly has an illustrious record that began during the Paulsson era. A few of its greatest hits are:

  • the Megafon dispute, in which Freshfields turned around an initial loss in a Russian telecoms “war” into a much bigger victory, leading to the unseating of a Russian minister amid corruption allegations;
  • multiple wins for investors against Argentina in the wake of its financial crisis;
  • acting in the first investment treaty claim by a Japanese investor (Nomura v Czech Republic), obtaining a US$236 million settlement for the client;
  • the World Duty Free case at ICSID, in which Freshfields absolved Kenya from liability despite evidence that the country’s then president had received a bribe; and
  • defending Turkey in three ICSID claims under the Energy Charter Treaty worth a combined US$17 billion, including one that resulted in a US$25 million costs award for the client.

More recently the team has:

  • secured a US$1.98 billion LCIA award for the UAE’s Crescent Petroleum and Dana Gas, leading to a settlement with the Kurdistan regional government of Iraq over two gas fields;
  • won US$1.2 billion for Canada’s Rusoro Mining and another US$98 million for British meat producer Vestey in ICSID claims against Venezuela;
  • negotiated a US$308 million settlement for ConocoPhillips unit Burlington Resources in a long-running ICSID case against Ecuador over a 99% levy on windfall profits of oil companies;
  • successfully defended Saint Lucia from a US$200 million ICSID claim brought by US oil company RSM;
  • won the only investment treaty matter ever heard by the US Supreme Court (BG v Argentina);
  • obtained a US$2 billion award for ExxonMobil and Shell in a dispute with the Nigerian National Petroleum Corporation;
  • inflicted Bolivia’s first loss in an investment treaty case (US$29 million for UK power producer Rurelec) and negotiated the state’s highest-ever settlement with a foreign investor (US$357 million for Pan American Energy);
  • helped Repsol settle its YPF expropriation claim against Argentina for US$5 billion; and
  • defeated a US$300 million claim against Cambodia, winning the state over US$5 million in cost.

Recent events

The practice has continued to achieve remarkable results, particularly in Latin-America related work. There has been a winning streak against Venezuela, beginning in 2016 with a US$1.4 billion award for distressed Canadian mining company Crystallex in a third-party funded ICSID claim – one of the largest awards in the centre’s history.

The award was recognised in Ontario and Washington, DC and Venezuela has since agreed to pay a record-breaking settlement.

Freshfields also helped Luxembourg-based steel pipe producer Tenaris obtain two ICSID awards against Venezuela worth US$173 million and US$165 million respectively, and is now defending the client from annulment proceedings filed by the state.

And it soundly defeated Argentina’s attempts to annul an award in favour of French oil major Total, with the state later paying US$210 million to satisfy it.

Another victory came when the firm convinced an UNCITRAL tribunal to dismiss jurisdictional objections filed by Kyrgyzstan against Canada’s Stans Energy in a dispute over the Kutessay II mine. An English court later upheld the award.

On the commercial side, Freshfields successfully defended Austrian energy company Rohöl-Aufsuchungs Aktiengesellschaft from an ICC claim brought by Energie Steiermark over a natural gas storage agreement.

It also teamed up with Shearman & Sterling and local counsel in Lahore to help nine power producers win a US$130 million LCIA award against a Pakistani state-owned electricity distributor for failing to comply with an earlier expert determination.

Other successes were against Shearman in politically sensitive Cairo Centre and UNCITRAL cases relating to Egypt’s repudiation of a deal to supply gas to Israel following attacks on a pipeline. In the Cairo Centre case, Freshfields’ client East Mediterranean Gas was awarded more than US$1 billion. In the UNCITRAL case it won on liability under a bilateral investment treaty for Polish investors in EMG with damages still to be awarded (the claim was for US$1.2 billion).

As part of the same dispute, Freshfields has already obtained a decision on liability against Egypt in an ICSID claim by other EMG investors; and a US$324 million ICC award in EMG’s favour that was upheld by the Swiss courts.

The firm helped Tata Sons enter a settlement deal with Japanese mobile operator NTT Docomo to facilitate payment of a US$1.17 billion LCIA award issued against the client, ending enforcement battles in Delhi, New York and London.

It had a loss for Tanzania, which was ordered to pay US$60 million to Japan’s Konoike Construction in an ICC case over a road construction project.

In the English courts, it was also unable to help British Virgin Islands company Stockman Interhold set aside three LCIA awards ordering it to hand over its majority stake in a Kiev mall to London’s Arricano Real Estate.

It was instructed by three new treaty claims against Colombia – brought by mining company Eco Oro, Mexican telecoms group América Movíl and Glencore; and for Dutch and Croatian investors in an ICSID claim against Croatia over a golf resort project.

Other instructions came from clients seeking to bring claims against Georgia over electricity tariffs.

In the public international law arena, Ben Juratowitch QC remains part of a team acting for Italy in a politically sensitive dispute with India over the killing of two fishermen by Italian marines. In May, a tribunal in The Hague ordered India to relax its bail conditions for one of the marines.

Away from the casework, the firm has been making waves for its push towards gender equality in arbitration. Partner Sylvia Noury continues to lead the Equal Representation in Arbitration Pledge – a call for the international arbitration community to increase on an equal opportunity basis the number of women appointed as arbitrators.

The pledge won a GAR award for “best development” in international arbitration and celebrated its first anniversary in 2017. As of November, it had 2,423 signatories.

Client comment

Denise Abel of German multinational Bertelsmann SE & Co used Freshfields for an ICC purchase price dispute. She says the firm’s performance was “outstanding” and that partner Lluís Paradell presented the case in an easy-to-follow manner for the tribunal.

Ina Roth of Deutsche Telekom is using Freshfields for an investment treaty case that is very important to the company. She praises the “client-friendly manner” of the firm's lawyers, calling them “far above the other side in advocacy and in command at all times”. Partner Sylvia Noury is leading the work on the case, with Will Thomas also lending support.

Another happy client of a high-profile tech company praises partners Sami Tannous and Jonathan Rawlings for their work in a multimillion-dollar arbitration, describing them as “absolute experts” that get things done in a timeframe and to a level of quality that he has not seen in other law firms.

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