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GAR 100 - 11th Edition

Curtis Mallet-Prevost Colt & Mosle

05 April 2018

The year brought defence wins for Cyprus, Libya and Cameroon

People in Who’s Who Legal 6
People in Future Leaders 2
Pending cases as counsel 108
Value of pending counsel work US$112 billion
Treaty cases 36
Current arbitrator appointments
7 (of which 5 are 
as sole or chair)
Lawyers sitting as arbitrator  7

This New York-based firm has made a name for itself as a knight in shining armour for governments facing serious claims under investment treaties.

That is partly down to a deliberate policy of only representing sovereigns in such claims, never investors. According to the inter­national arbitration group co-chair, George Kahale III, it is not feasible for the same practice to represent both claimants and states because of the recurring legal issues. He thinks that governments now believe this too. The firm’s ever-expanding roster of state clients suggests he may be right. Members of the firm are also forbidden from acting as arbitrators in investor-state cases.

Kahale, who is also the firm’s chairman and former managing partner, began as a transactional attorney and built his reputation representing state oil companies of Kazakhstan, Mexico and Venezuela. These days, he’s an increasingly vocal critic of the investor-state arbitration system, which he regards as “seriously flawed”.

Although strongly identified with BIT work, the firm takes its commercial arbitration offering equally seriously. It has a presence in Paris, where the other practice co-chair, Peter Wolrich, resides. Wolrich has strong links with the ICC, having formerly chaired its commission on arbitration and ADR for 11 years and overseen the latest revisions to the ICC arbitration rules.

Other names to know include Miriam Harwood and Mark O’Donoghue in New York, Ben Preziosi and Charles Buderi in London, Geoffroy Lyonnet in Paris, Galileo Pozzoli in Milan, Gabriela Alvarez-Avila in Mexico City and Claudia Frutos-Peterson (head of the practice in Washington, DC). The latter two are former ICSID counsel.

Network

The practice is concentrated in Paris, London, Milan, Mexico City, New York and Washington, DC, though it also has boots on the ground in Almaty, Astana, Ashgabat, Geneva and Buenos Aires. It has around a dozen disputes lawyers in Dubai and Muscat, and one counsel based in Beijing.

Who uses it?

States, states and more states. Venezuela and Turkmenistan have used the firm in more than 20 cases each, while Kazakhstan and Libya are frequent clients. It’s acting for India in several major telecoms-related treaty cases with a combined value in the billions. Indonesia retained it for a pair of ICSID claims over mining licences, with happy results.

Uganda and Ghana have turned to the firm for disputes in the extractive industries, while in recent years, instructions have come from Albania, Algeria, Cameroon, Cyprus, Kuwait, Laos, Macedonia, Nigeria, Russia, Spain, Tanzania, and Vietnam.

State entities such as PDVSA, Sonatrach, Pemex, KazMunayGas and the Nigerian National Petroleum Corporation use the firm.

Track record

The firm has notched up some significant defence wins. In 2016, it helped Indonesia to knock out a pair of ICSID claims worth US$1.3 billion by persuading the tribunal that the mining licences under­pinning the investment of London-listed claimant Churchill Mining had likely been forged by a local business partner. The state was awarded US$9 million in costs.

It has had multiple wins for Turkmenistan at ICSID, including in two cases lodged by Turkish construction companies Kılıç and Içkale. It reduced a similar claim by Turkey’s Garanti Koza to an award of just US$2.5 million out of the US$46 million sought.

Another satisfied client is Uganda. The firm helped it to defeat a US$400 million tax-related claim brought by Canada’s Heritage Oil in 2015 (and obtain US$4 million in costs) and settle another tax dispute with Tullow Oil that saw the company agree to pay over US$250 million to the state. Meanwhile the firm has helped Ghana see off a US$200 million ICC claim by a mining investor.

In 2012, it helped Kazakhstan to defeat a billion-dollar ICSID claim by oil company Caratube in 2012 for lack of jurisdiction. Although Caratube refiled its claim and won second time around, the new tribunal only ordered the state to pay US$39 million.

Indeed, the firm has proved adept at significantly lowering the amount of money at stake in certain cases even where it loses on liability. When Venezuela faced a US$16 billion ICSID claim from ExxonMobil, Curtis lawyers persuaded the tribunal to exclude a sizeable chunk of the damages claim that related to events preceding a corporate restructuring. A final award in 2014 ordered Venezuela to pay US$1.6 billion, but this figure was dramatically reduced by US$1.4 billion in annulment proceedings.

In the same vein, Curtis reduced a US$250 million ICSID claim by US-based oil services company Tidewater against Venezuela to an award of just US$56 million, with the panel ruling that the state had committed a lawful expropriation. An annulment committee shaved a further US$10 million from the award.

It has also secured more clear-cut wins for Venezuela, knocking out a series of ICSID claims brought under the country’s 1999 law on foreign investment.

The firm’s high profile in investor-state cases sometimes overshadows their successes in commercial arbitration. One example of the latter was helping French chemicals producer Arkema to defeat a €310 million ICC claim brought by Swiss chemicals group Klesch and prevail on a €74 million counterclaim.

Recent events

In February 2017, it helped Cyprus to see off the first of several investment treaty claims arising from its debt crisis, with a Stockholm Chamber of Commerce ruling that a haircut on deposits in a Cypriot bank did not amount to unlawful expropriation.

Another win was for Cameroon in an ICSID claim brought by an investment vehicle controlled by the jailed son of one of the country’s most powerful businessmen. That award is now the subject of annulment proceedings.

Libya’s National Oil Corporation used the firm in its successful defence of two ICC arbitrations worth over US$1.4 billion brought by the Emirati owner-operators of the country’s biggest refinery. As well as defeating all claims, the state entity prevailed on a US$116 million counterclaim in one of the cases. Curtis is also defending another NOC subsidiary against a €182 million ICC claim brought by an Indian construction company over a pipe-laying project disrupted by the country’s civil war.

Continuing its work for Venezuela, the firm reduced a US$500 million ICSID claim by coffee producer Longreef to an award of just US$53 million including interest. It helped the state undo the recognition of ExxonMobil’s award in New York after persuading the Second Circuit that ICSID awards against states cannot be enforced on an ex parte basis.

It pulled off a similar trick for Spain, convincing a New York court to vacate its enforcement of a €128 million Energy Charter Treaty award in favour of British investment fund Eiser. Curtis is also representing Spain in its efforts to annul the award at ICSID. It is the first award to hold Spain liable for reforms to its renewable energy sector.

Another court victory came in London on behalf of Kazakhstan, defeating an attempt to set aside an UNCITRAL award that dismissed claims brought by a poultry investor.

On the commercial side, it helped a real estate client have a US$266.5 million DIAC award set aside by the Dubai courts on jurisdictional grounds.

New instructions include an Energy Charter Treaty claim against Turkmenistan by a Turkish power investor and partner Charles Buderi is leading a team that is defending Kuwait from an ICSID claim filed by Egyptian construction company Almasyria.

In DC, the firm welcomed senior international counsel Luis Parada, a former Foley Hoag partner whose experience includes helping El Salvador to defeat a controversial mining claim at ICSID in 2016.

In Dubai, Thomas Geuther joined as partner from Dechert.

Partner Ben Preziosi relocated from New York to head up the firm’s international arbitration practice in London ahead of the departures of partners David Hesse and Peter Stewart for Clyde & Co.

Curtis promoted two new partners, Dori Yoldi in Geneva and Fernando Tupa in Buenos Aires, and two counsel, Robert Garcia in New York and Bahar Charyyeva in Ashgabat.

In Paris, partners Sabrina Aïnouz and Jérôme Lehucher and associate Victor Datry left the firm to join the newly launched Paris arbitration practice at British firm DWF.

Client comment

A former adviser to a state oil company client says the firm’s “superior knowledge of the industry has been a clear advantage”. He says Curtis “goes all the way up to eleven” in terms of response times, service and legal knowledge.

The operations director at an engineering consultancy says Curtis is the only firm where “every single lawyer you meet, from the most junior to the most senior, is always one of the best you have encountered in their field.” They appreciate the wider social and economic effects of their cases, and blend this understanding with the most appropriate and thorough defence.

He singles out Ben Preziosi – “one of the very best advocates in formal proceedings I have seen” – and says Miriam Harwood has a “great facility with the law in many jurisdictions.” Ali Gursel is able to “see the trends in changing circumstances and adapt the strategy of the team to achieve the best outcome”.

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