The UK magic circle firm has won a succession of Energy Charter Treaty awards for investors affected by Spanish reforms to solar power subsidies
|People in Who's Who Legal||9|
|People in Future Leaders||7|
|Pending cases as counsel||303|
|Value of pending counsel work||US$36.5 billion|
|Third-party funded cases||0|
|Current arbitrator appointments||16 (9 as chair or sole)|
|Lawyers sitting as arbitrator||13|
Allen & Overy became known in international arbitration thanks to former partner David St John Sutton. By the time he joined the Bar in 2001, there were others ready to take over, including the current global co-head of the practice, Matthew Gearing QC.
The team subsequently grew to be one of the biggest in the London market and one of the most admired, particularly for recruiting talented lawyers. It’s been an innovator too – bringing the first-ever Energy Charter Treaty claim and generally entering fast into the world of investment treaty disputes. Unlike some in the London market, A&O partners do their own advocacy in international arbitration.
In 2005, the practice started branching out to other cities through lateral hires: first in New York, then Hong Kong and Singapore, and more recently Paris, Frankfurt and Johannesburg.
After many years with former partner Judith Gill QC at the helm, the baton passed to Stephen Jagusch, then to Gearing in Hong Kong and Michael Young in Paris. After Young left in 2016 to follow Jagusch to Quinn Emanuel Urquhart & Sullivan, partner Mark Levy in London took over as co-head of the group alongside Gearing.
Gearing is based in Hong Kong and is the chair of the Hong Kong International Arbitration Centre, as well as a co-editor of Russell on Arbitration, one of the leading texts on English arbitration law.
Other names to know include partners Kate Davies, Richard Smith and James Freeman in London, Christopher Mainwaring-Taylor and Marie Stoyanov in Paris, Marieke van Hooijdonk in Amsterdam, Matthew Hodgson in Hong Kong, Sheila Ahuja in Singapore and Mark van Brakel in Sydney.
The firm operates in 31 countries. For arbitration, the key cities are London, Paris, Hong Kong, Singapore, Dubai, Amsterdam, Frankfurt, Bratislava, Sydney and Perth. In 2018, the firm also recruited a team in Johannesburg from Baker McKenzie.
Who uses it?
Allen & Overy is renowned for arbitrations concerning oil and gas and renewable energy, the Energy Charter Treaty (especially against EU member states), derivatives and other financial products (thanks to a long-standing connection with ISDA, the derivatives standards organisation).
Notable energy clients include Engie, Shell, Total, BG Group, Reliance Industries, AES, China National Offshore Oil Corporation and Qatargas.
Gazprom subsidiary South Stream has been using it for a major construction dispute with Italy’s Saipem. It’s also worked for telecoms clients Millicom and Nokia, as well as Samsung, Johnson & Johnson, Nissan, Airbus and Toshiba.
On the government side, the firm has defended Pakistan in a number of high-stakes disputes as well as the Netherlands, Peru, Slovenia, the United Arab Emirates, Morocco, Oman, Poland, Azerbaijan and Cuba.
The firm procured the first ECT award to hold Spain liable for reforms to renewable energy subsidy regime in 2017, winning €128 million for UK investment fund Eiser Infrastructure. Allen & Overy has since obtained awards against Spain in two other cases (see “Recent events”) and continues to advise numerous other claimants affected by the reforms.
Going further back, it helped Deutsche Bank win a US$60 million ICSID award against Sri Lanka in 2012, which established that a derivatives contract is an “investment” for treaty purposes.
It has also had good results defending states in treaty disputes. In 2016, the firm helped Pakistan knock out a pair of treaty claims worth US$640 million brought by gas investor Progas and its chairman Ali Allawi concerning a gas import terminal in Karachi, winning the state £11 million in costs. Allen& Overy is now defending the awards in English court proceedings, where it recently obtained a ruling requiring the claimants to pay security for costs.
Some examples of defence wins in commercial arbitrations include helping Italian engineering company Ansaldo to defeat a US$436 million ICC claim brought by Siemens; and knocking out an ICC claim brought by French insurance company CNP Assurances against the Bank of Cyprus.
In the wake of its win for Eiser against Spain mentioned above, Allen & Overy had two further successes for solar investors in 2018 – obtaining a €64.5 million award for Masdar, a Dutch entity owned by an Abu Dhabi sovereign wealth fund; and €112 million for Antin Infrastructure. The Masdar award was notable for being the first to consider the implications of the Court of Justice of the European Union’s ruling in Achmea.
Allen & Overy helped the UK’s BG Group and India’s Reliance Industries bring a successful English court challenge to an UNCITRAL award in a billion-dollar dispute with the government of India over two oil and gas fields off the coast of Mumbai. The firm persuaded the court that the tribunal’s failure to deal with an issue relating to cost recovery had given rise to a “substantial injustice”. The arbitrators had dismissed most of the companies’ claims.
The firm helped Oman settle an ICSID claim brought by Samsung Engineering, in which the company alleged it was unfairly denied a US$2 billion contract to upgrade an oil refinery plant despite being selected as the preferred bidder.
Morocco retained the firm’s Paris and Casablanca offices to defend it in an ICSID claim by a company owned by Saudi Arabian billionaire Sheikh Mohammed Al-Amoudi. The case relates to the privatisation of the operator of Morocco’s only oil refinery.
The firm continues to act for Nissan in a US$776 million investment treaty claim against India over a state government’s failure to deliver promised incentives to build a car factory.
The Hong Kong office is advising China National Petroleum Corporation in an ICC case against a Costa Rican state-owned entity over a cancelled US$1.5 billion project to upgrade an oil refinery.
The firm is also defending Abu Dhabi sovereign wealth fund Mubadala in an ICC claim brought by football club Real Madrid. The club accuses the fund of walking away from a €400 million sponsorship agreement.
Judith Gill QC retired from the partnership after 35 years with Allen & Overy, and is now an arbitrator based at 20 Essex Street in Singapore. Singapore Partner Andrew Battisson left for Norton Rose Fulbright in Sydney.
The head of the firm’s dispute resolution and international arbitration practices in Germany, Daniel Busse, left to establish his own boutique in Frankfurt, taking a team with him.
The firm hired partner Suzanne Spears from Volterra Fietta, who brings experience in investment treaty arbitration and business and human rights.
Sheila Ahuja in Singapore, Yacine Francis in Dubai, James Freeman in London and David Jenaway in Perth were promoted to the partnership in 2018, while Mia Ramb in Frankfurt was promoted to counsel.
Louis Omotimirin of the Nigerian arm of Chinese oil and gas company CNOOC says Allen & Overy delivers “exceptional services” and “new ideas”.
A global energy company described the firm’s legal advice as being “of the highest standard while not losing focus on the commercial objectives”. The client said Mark Levy and Marie Stoyanov “impressed us with their advocacy skills”.