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GAR 100 - 11th Edition

De Brauw Blackstone Westbroek

05 April 2018

Helped to lift an attachment on US$22 billion in Kazakh assets

People in Who’s Who Legal 1
People in Future Leaders 1
Pending cases as counsel 25
Value of pending counsel work US$70 billion
Treaty cases 10
Current arbitrator appointments
3 (of which 2 are 
as sole or chair)
Lawyers sitting as arbitrator  2

De Brauw has a long tradition in arbitration – former partner Lodewijk Sillevis Smitt was president of the Netherlands Arbitration Institute (NAI) for almost 20 years until his retirement in 2003. Partner Marnix Leijten is a vice president of the ICC Court while Bommel van der Bend is a member of the NAI board. Another partner, Edward van Geuns, is on the board of the Dutch Arbitration Association, launched in 2013.

Some of its success is thanks to its homeland’s central role in the European gas industry. De Brauw was one of the first to ride the wave of gas-pricing arbitrations that broke in Europe a few years back, and since then has won price readjustments for client GasTerra worth over €2.3 billion.

The firm is increasingly active in investor-state arbitration and has played a role in some of the biggest investment treaty-related cases before the Dutch courts, most notably in the Yukos saga. It is also acting in a landmark case before the European Court of Justice on the validity of bilateral investment treaties between EU member states.

Its lawyers are admitted in England and Wales, New York and Canada as well as the Netherlands.

Network

Five of the six partners in De Brauw’s international arbitration group are in Amsterdam. Van Geuns has been based in Singapore since 2016.

The wider firm has offices in New York, London, Brussels, Beijing and Shanghai. It is also a member of the “Best Friends” network of law firms that includes five other GAR 100 firms: Italy’s BonelliErede, France’s Bredin Prat, Germany’s Hengeler Mueller, Slaughter and May in the UK, and Spain’s Uría Menéndez.

Who uses it?

Dutch and foreign multinationals, including healthcare insurer Achmea, chemical producer AkzoNobel, Dutch Railways, GasTerra, Heineken, Johnson&Johnson, Philips, ProRail, Shell, Telefónica, Unilever, travel commerce broker Travelport and semiconductor manufacturer NXP Netherlands.

The firm is representing the former majority shareholders in Yukos Oil Company before the Dutch courts in their efforts to reinstate a US$50 billion award against Russia. De Brauw has acted for Yukos affiliates in other cases – including efforts to enforce four Russian awards against Rosneft.

It also has a few government clients. Ecuador has used it in set-aside proceedings stemming from a US$9 billion dispute with Chevron over liability for environmental pollution, while the National Bank of Kazakhstan has used the firm to good effect.

Track record

The firm has helped GasTerra – a joint venture between Shell, ExxonMobil and the Dutch government – win substantial retroactive price adjustments under long-term supply contracts with Italy’s Eni. In 2012, an UNCITRAL panel granted GasTerra a price increase worth €850 million, followed by a similar ruling in 2013 by an ICC panel to the tune of €455 million. Freshfields acted for Eni in both cases.

There was a further victory for GasTerra in 2016 when it won the dismissal of a claim by Eni for a €2 billion gas price cut. The firm later filed a fresh arbitration on behalf of GasTerra and won a freeze of €1 billion in assets owned by Eni’s Amsterdam operation.

Dutch technology group Philips used the firm for a €500 million ICC dispute with Japanese consumer electronics group Funai over an aborted M&A deal, which was heard in Osaka. It ended in a €135 million award for the client in 2016, with all Funai’s counterclaims dismissed.

In the investment treaty arena, it won a €22 million UNCITRAL award for Dutch health insurer Achmea in 2012. Thanks to Slovakia’s efforts to set aside the award in the German courts, the European Court of Justice is now finally considering the thorny question of whether intra-EU BITs are compatible with EU law. De Brauw has reportedly succeeded in attaching Slovakian bank accounts in Luxembourg in support of the award.

De Brauw also helped Achmea bring a second treaty claim against Slovakia over its plans to establish a single-payer healthcare insurance market in the country. Though the claim failed, the company said the manoeuvre helped to persuade Slovakia to shelve its expropriation plans.

The firm scored two victories for NXP Netherlands in 2012 in a post-M&A dispute with STMicroelectronics. An ICC tribunal issued a US$59 million award in the client’s favour. A second case brought by the other side was dismissed a year later.

Recent events

One of De Brauw’s most eye-catching recent results was persuading the Amsterdam District Court to lift an attachment on an unprecedented US$22.6 billion in assets managed by the National Bank of Kazakhstan in January 2018. The firm was able to demonstrate that the arbitral creditors that won the attachment had concealed information from the court.

Together with Covington & Burling, the firm helped two international labour union federations settle claims they had brought against two global fashion brands. The cases concerned the alleged breach of the 2013 Accord on Fire and Building Safety in Bangladesh, a business and human rights agreeement signed in the wake of a building collapse in Dhaka that killed more than 1,000 garment factory workers and injured 2,000 others.

GasTerra used the firm again in an ICC gas price dispute with Russia’s Gazprom that settled in June 2017.

An NAI award worth US$450 million against its client Tiffany was reinstated by the Amsterdam Court of Appeal in April 2017, two years after De Brauw had persuaded a lower court to annul it. An appeal is now pending with the Dutch Supreme Court.

After Russia’s success in setting aside the US$50 billion Yukos award in 2016, De Brauw continues to represent the oil company’s former majority shareholders in an appeal before The Hague Court of Appeal, which is not expected to rule before the second half of 2018.

The firm continues to act in an ICSID case against Croatia brought on behalf of client Amlyn Holdings concerning an investment in a biomass plant. It is also defending Shell against a US$245 million claim filed by a Malaysian state-owned shipping company at the Kuala Lumpur Regional Centre for Arbitration.

Client comment

A regular client who has used the firm in several high-value disputes says it “clearly beats its competitors in professionalism, preparedness, power of argumentation, alertness, tactics and thorough appreciation and understanding of the issues at stake.”

Marnix Leijten is described as “exceptionally committed, with very strong ethical values and excellent performance both on the strategic level and in execution”; Bregje Korthals-Altes is “very solid” and “makes complex issues less complex”; and Albert Marsman is “outstanding” in hearings.

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