Bringing more claims against Gambia as it defends Sri Lanka and Yemen at ICSID
|People in Who’s Who Legal||2|
|People in Future Leaders||3|
|Pending cases as counsel||350|
|Value of pending counsel work||US$40 billion|
|Current arbitrator appointments||
10 (of which 5 are
as sole or chair)
|Lawyers sitting as arbitrator||5|
Originally one of the City of London’s big shipping firms, Clyde & Co has grown beyond those beginnings into general corporate work.
The firm has disputes – particularly international ones – in its DNA. It has one of the largest dockets of commercial arbitration of any firm in the GAR 100 and has been described by the LCIA as its biggest single user by a large margin.
And while some of that is fast-paced shipping and commodities work, not all is. For example, a while back, Clyde & Co turned up representing Yemen in one of the largest ICC arbitrations of the day (worth around US$10 billion). It also worked on one of the first large Russian oligarch cases (the TadAZ matter). In fact, about 40% of its arbitration activity is more complex work. The sheer volume of cases means it’s also often in front of the London courts on arbitration matters.
Over the years, the practice has added relevant expertise, absorbing teams from construction law boutique Shadbolt in 2010 and from UK firm Barlow Lyde & Gilbert a year later. In 2013, the firm formed a joint law venture with Singapore firm Clasis, enabling it to provide advice on foreign and Singapore law under one roof.
The global arbitration group is co-chaired by partners Peter Hirst and Ben Knowles in the London office. The group also has an executive board that includes Maurice Kenton and David Leckie in London, June Yeum in Singapore and New York, and Nassif BouMalhab in Dubai.
In contrast to most firms in the GAR 100, Clyde & Co partners seldom perform advocacy – they feel that using barristers is more efficient.
The more important centres for arbitration for Clyde & Co are London, the Middle East (Dubai, Abu Dhabi and Doha) and the Asia-Pacific region (especially Singapore). The firm claims to have more lawyers registered with the Dubai International Financial Centre courts than any other.
There are other partners with arbitration experience in the Americas (including New York, Caracas and Rio de Janeiro).
The arbitration practice benefits from having one of the broadest networks of offices (around 50) and much of its work emanates from the farther reaches of that network.
It has a string of offices across the US and opened further offices in Chicago, Los Angeles and Washington, DC in 2017 – along with an office in Mexico. It also has bases in São Paulo, Dar es Salaam, Cape Town, Johannesburg, Jakarta, Nantes and Tripoli, to name but a few.
Who uses it?
Governments, trading houses, energy companies and construction firms for the most part, often from remote places. The office in Brazil is bringing in some big clients, helped by the firm’s strong links with the London insurance market.
Its private clients include commodities traders Glencore Xstrata, Inerco Trade, Holcim Trading and Norilsk Nickel; energy companies Total, African Petroleum, Labroy Offshore and Swala Energy; mining companies U&M and Astron; engineering firm Alstom; and telecoms major Nokia.
On the government side, it has advised Yemen, Sri Lanka and Comoros and state-owned entities KazMunayGas of Kazakhstan and Tanesco of Tanzania.
In 2013, the firm won a US$644 million award against Venezuelan state entity PDVSA on behalf of UAE-based oil services company Gulmar Offshore. The case was heard in London under maritime arbitration rules. PDVSA satisfied the award in the following year.
Clyde & Co has also had good results for Australian investors in Gambia. Partner Maurice Kenton helped African Petroleum settle two ICSID cases against the state, leading to the return of the company’s exploration licences (though further claims have ensued). He also won US$23 million for Carnegie Minerals (a unit of Astron) in an ICSID case in 2015 that is now in annulment proceedings.
The firm helped a subsidiary of Brazilian mining group U&M win a series of LCIA awards worth US$54 million against Konkola Copper, a unit of London-listed Vedanta Resources, concerning assets in Zambia. The firm also fended off a challenge to the awards in the English courts and obtained a freezing order against Konkola’s assets.
The firm’s Singapore arm, Clyde & Co Clasis, obtained a US$19.5 million DIAC award for locally listed company Banyan Tree Holdings against an entity owned by the ruler of Dubai. The Singapore and Dubai offices then worked together to enforce the award successfully before the DIFC courts – the first enforcement of an award with no connection to the financial free zone.
In 2012, the firm secured US$200 million for Yemen’s ministry of oil and minerals in a dispute with a local oil firm.
The London office welcomed partners David Hesse and Peter Stewart from Curtis Mallet-Prevost Colt & Mosle, who bring experience representing African governments and companies in energy disputes. They brought with them an active ICSID matter for Tanzanian state power company Tanesco, which is seeking to annul a US$148 million award in favour of UK bank Standard Chartered.
Another energy disputes specialist, Alejandro Garcia, joined in London from Winston & Strawn.
In Dubai, construction partner Matthew Heywood joined from Osborne Clarke, while investment arbitration specialist Anne K Hoffmann joined as legal director from UAE firm Al Tamimi & Company.
Partner Alec Emmerson left the Dubai office after 40 years at the firm to practise full time as an arbitrator.
Another construction lawyer, Dennis Wong, was promoted to the partnership in Hong Kong.
London-based African Petroleum has retained the firm again for three new ICSID claims against Gambia relating to the state’s failure to renew exploration licences for two offshore oil blocks.
It has been defending Sri Lanka in an ICSID claim brought by a British investor who claims the state is liable for the flooding of a plot of land on the banks of Diyawanna Lake near Colombo, which allegedly scuppered a hotel development.
Clyde & Co also continues to defend Yemen in an ICSID claim filed by Chinese contractor Beijing Urban Construction Group relating to an airport project. The firm succeeded in getting some of the claims struck out at the jurisdictional stage in May 2017, though claims for expropriation will proceed to the merits.
There was success in the courts, as the firm’s Indian arm convinced the High Court in Delhi to reject an anti-suit injunction by India’s GMR Energy to halt a US$100 million SIAC claim by its client, a local subsidiary of South Korean conglomerate Doosan.
A private equity client says Clyde & Co was “streets ahead” of the other counsel in the case, and though “hellishly expensive”, proved willing to offer a success fee mechanism, which helped a lot in getting approval to pursue the claim. London partner Ben Knowles gave extremely good guidance, the client adds.
An investment management client said it would recommend Knowles “unreservedly” and described him as “a very professional and, unusually, a very practical arbitration lawyer, who knows his way around the system”.
Another client says that partner Maurice Kenton quickly established a clear basis for the company’s position, giving it confidence in the arbitration.
A state-owned construction client describes Clyde & Co as a “great firm”, especially singling out Paris-based partner David Brown for his conscientiousness and calmness under pressure.