Helping a Canadian miner enforce a billion dollar award against Venezuela
|People in Who's Who Legal||1|
|People in Future Leaders||1|
|Pending cases as counsel||25|
|Value of pending counsel work||US$9 billion|
|Third-party funded cases||3|
|Current arbitrator appointments||3 (2 as chair or sole)|
|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 former member of the NAI board. Another partner, Edward van Geuns, is a founding board member 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 ago, 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.
Its lawyers are admitted in England and Wales, New York and Canada as well as the Netherlands. De Brauw also boasts the largest number of arbitration practitioners listed in Who’s Who Legal for any Dutch firm, with Leijten named as a ‘thought leader’ in the field.
Six of the seven 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, Frankfurt 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, Tiffany, 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.
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.
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.
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. The firm continues to represent Kazakhstan in other proceedings before the Dutch courts.
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 agreement signed in the wake of a building collapse in Dhaka that killed more than 1,000 garment factory workers and injured 2,000 others.
The firm worked on one of the most significant arbitration-related disputes of the year representing Dutch health insurer Achmea before the European Court of Justice. De Brauw helped Achmea win a US$22 million UNICTRAL award against Slovakia, however this was challenged before German courts before being referred to the ECJ. The ECJ eventually ruled that the intra-EU BIT between Slovakia and the Netherlands was invalid under EU law, a decision which has been seen as also invalidating all other intra-EU BITs currently in force. Germany’s Federal Court of Justice has since confirmed the award has been set aside.
Acting for the state De Brauw has better luck, persuading the Dutch Supreme Court to reject enforcement of a US$650 million award held against the Czech Republic by a Liechtenstein-registered blood plasma supplier.
The firm also reports having won a ground-breaking decision from the Hague courts, allowing it to proceed with enforcement proceedings against Venezuela’s PDVSA despite the state oil company having no establishment in the Netherlands. De Brauw is trying to help Canadian mining company Crystallex enforce its US$1.4 billion award against Venezuela.
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, with a ruling expected imminently.
Other work before the Dutch courts this year came for client Tiffany. An NAI award worth US$450 million against the luxury jewellery company was reinstated by the Amsterdam Court of Appeal in April 2017 two years after De Brauw had persuaded a lower court to annul it. The Dutch Supreme Court went on to reject Tiffany’s final appeal.
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.
New instructions have come from regular client AkzoNobel who it is helping bring a high-value ICC claim against an Israeli corporation over the termination of a contract to use waste produced at a potash mine near Barcelona to make high-quality salt. It is also acting for a Chinese state-owned food company in its US$550 million ICC claim against the former owners of a Dutch agricultural commodities trader, also representing its client in the Dutch courts.
De Brauw continues to represent private equity group Waterland in a €2 billion claim brought against it before the Belgian arbitration institute CEPANI.
The firm has also expanded its partnership by promoting Matthias Kuscher, a senior associate who worked on Yukos proceedings.
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.