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GAR 100 - 12th Edition

Dentons

05 April 2019

Obtained the unprecedented annulment of a treaty award in the English courts

People in Who's Who Legal 5
People in Future Leaders 4
Pending cases as counsel 30
Value of pending counsel work US$18 billion
Treaty cases 7
Third-party funded cases 5% of cases
Current arbitrator appointments 41 (23 as chair or sole)
Lawyers sitting as arbitrator 8

Dentons was the product of a 2013 merger between UK-US firm SNR Denton, Canada’s Fraser Milner Casgrain and Paris-based Salans. It merged with Dacheng Law Offices in mainland China in 2015 and agreed tie-ups with Rodyk & Davidson in Singapore and Australian firm Gadens a year later.

Of the different merger partners, Salans and Rodyk & Davidson enjoyed the strongest reputation in international arbitration, both having featured in the GAR 100 for several years. However, other merger partners bring some experience in this field, partly thanks to their transactional work for clients in oil and gas and financial services.

Salans was founded in Paris in 1978 by US and French lawyers and gained a name in the late 1980s for its trade work across the Iron Curtain. The firm handled some of the earliest disputes arising from Western investment in the Russia and CIS region, and East–West trade has continued to account for around half of its arbitration caseload, with much of the rest coming from Greater China, Africa and North America.

The legacy Salans practice (now the Europe arm of Dentons) is led from Paris by Jean-Christophe Honlet, with Barton Legum heading up the busy investment arbitration group. Legum joined in 2009 from Debevoise having formerly headed the US Department of State’s NAFTA claims division.

SNR Denton developed its arbitration practice as an offshoot of its energy work. Oil and gas clients provide a “guaranteed pipeline” of disputes work, the firm says. It has since branched out into inter­national trade and finance. Partner Liz Tout headed the legacy London practice for over a decade and now heads Dentons’ international arbitration practice in the UK.

The tie-up with Rodyk & Davidson brought in an impressive team in Singapore, headed by Philip Jeyaretnam SC, who is also chairman of local hearing centre Maxwell Chambers. Rodyk’s team includes maritime specialist Lawrence Teh, who co-chairs the IBA’s Asia-Pacific arbitration group and the Asia-Pacific Regional Forum.

Network

Paris and London were the centre of the Salans arbitration practice and remain at the heart of the Dentons group, but recent hires and other mergers have made Moscow, New York and Singapore increasingly important hubs.

Salans also contributed boots on the ground in Almaty, Bucharest, Prague, St Petersburg, Warsaw and Washington, DC, while SNR Denton brought offices in Dubai, Muscat, Qatar and Hong Kong. Fraser Milner Casgrain contributed members of the group in Calgary, Edmonton, Montreal, Ottawa and Toronto. Dacheng has added arbitration practitioners in Beijing.

Dentons entered Latin America for the first time in 2016 through tie-ups with Colombian and Mexican firms.

The wider firm has 145 offices in 60 countries. It has offices in Cairo and Casablanca, and associate offices or alliance firms throughout Africa, which may explain its large amount of Africa-related gas price review work.

Who uses it?

Dentons’ investment arbitration clients on the claimant side have included Canadian drugmaker Apotex, ExxonMobil, Murphy Oil, Canada’s Niko Resources, and Sudanese state oil company Sudapet (in a claim against South Sudan).

It has also won instructions from respondent states including Australia, China, Kyrgyzstan and Libya and state-owned entities such as Turkey’s Botaş. The Indian government has used the firm for set-aside proceedings in London.

On the commercial side, it has acted for Gazprom, Engie, Total, Deutsche Bank, E Energija, Bouygues, Misen Energy, Nakheel, Omantel and Starwood Hotels.

Rodyk & Davidson’s clients include Indonesian state gas trans­mission company PT Perusahaan Gas Negara.

Track record

Some of the firm’s most visible recent successes were for Gazprom in a long-running gas dispute with Lithuania. In 2016, it persuaded an SCC tribunal to throw out a US$1.9 billion claim by the Lithuanian energy ministry that alleged Gazprom had unfairly raised its prices.

That was after Dentons obtained an injunction from another SCC tribunal that restrained the ministry from litigating its claims in the Lithuanian courts. That part of the dispute went all the way up to the European Court of Justice, which affirmed in 2015 that anti-suit injunctions issued by arbitrators do not violate EU law. The Lithuanian Supreme Court later enforced the SCC award. (The ECJ decision earned a GAR Award for most important arbitration decision of that year.)

It has a fine track record in investment treaty cases too. In 2017, it helped China secure the early dismissal of a claim filed by a South Korean investor in a golf course – only the second case China has ever faced at ICSID. Chinese firm Zhong Lun, also in the GAR 100, was co-counsel to the state.

Though it didn’t appear as counsel of record, Dentons played a behind-the-scenes role advising Australia in a multibillion-dollar treaty claim brought by Philip Morris over legislation mandating plain packaging of cigarettes. The case was thrown out in 2015 after Philip Morris was found to have engaged in an abusive corporate restructuring to benefit from treaty protection. It recently emerged that Australia was awarded around US$8 million towards its defence costs (half of what the state spent overall in fighting the case).

The Paris office helped Delaware client Customs & Tax Consultancy secure an ICC award against the Democratic Republic of the Congo in 2015 that is now thought to be worth over US$250 million including interest. The team also helped confirm the award in the French courts, while Dentons lawyers in the US are helping the client enforce the awards in the DC courts.

In 2008, Salans won a US$125 million award for a pair of Turkish telecoms clients – Rumeli Telekom and Telsim – in an ICSID claim against Kazakhstan. In another case, it helped Kyrgyzstan settle a claim brought by Oxus Gold without any payment by the state or its instrumentalities.

In 2009, Salans helped Vivendi claw back lost ground in a battle over ownership rights in a Polish telecoms firm, winning a €1.9 billion award in an LCIA arbitration, followed by settlement in 2011, which saw Vivendi collect over €1 billion. It won its client US$2.3 billion in another LCIA arbitration, but against a by-then bankrupt Polish entity. The result, however, paved the way for Vivendi to receive a billion-dollar payment.

Recent events

The firm set new ground after it secured the first set aside of an investor-state award by an English court. A judge ruled that an eminent tribunal hearing private equity group Griffin's dispute with Poland interpreted an investment treaty too narrowly when it declined jurisdiction over certain claims. The decision is doubly unique as it is also thought to be the first time the English courts have annulled a negative jurisdictional finding by an arbitral tribunal.

The Paris and Kiev offices helped subsidiaries of Sweden’s Misen Energy to largely defeat claims brought by Ukraine’s largest natural gas producer, a subsidiary of state-owned Naftogaz. A Stockholm tribunal rejected the Ukrainian party’s arguments that a joint venture agreement had been procured through collusion or corruption. The case is now at the damages phase.

Dentons and Pinsent Masons paired up to defend Libya and a Libyan state entity in an ICC claim brought by Turkish joint venture partners concerning an underground pipeline project disrupted by the Arab Spring. The tribunal declined jurisdiction over the state but ordered the state entity to pay US$40 million. A parallel treaty claim over the same project continues, also under ICC rules.

Dentons also achieved a number of settlements. It helped US transport company Omnitrax to settle its US$118 million NAFTA claim against Canada relating to a port and railway line damaged by flooding.

The firm’s client Papua New Guinea also settled an ICSID dispute with Singaporean oil and gas group Puma Energy over a tax liability related to its crude oil production.

Energy client PV Crystalox struck a deal with a Taiwanese photovoltaic company to receive payment of a €28 million ICC award that Dentons secured in an arbitration over the supply of silicon wafers, along with co-counsel Norton Rose Fulbright.The New York office is bringing a US$700 million ICSID claim against Colombia on behalf of a Canadian investor in historic gold and silver mines who says the government failed to evict illegal miners or control violent strikers and a guerrilla group.

A Chinese investment firm has also turned to the firm as it applies to a California court to enforce a CIETAC award worth more than US$100 million against a beleaguered tech entrepreneur formerly described as “China’s Steve Jobs”.

Dentons’ head of Russian arbitration and litigation Mikhail Ivanov leads a team acting for Turkish construction company Entes in an application to enforce a US$16.6 million UNCITRAL award against Kyrgyzstan and its ministry of transport before the Russian courts, issued in 2015 under a contract for a road rehabilitation project.

Former in-house counsel at Russian oil producer Lukoil, Bobur Shamsiev joined as a partner in Tashkent, while David Wotherspoon joined as partner in Vancouver from MLT Aikins. Courtney Lotfi joined as counsel in Frankfurt.

Partners Ivan Bilaniuk in Washington, DC, and Milán Kohlrusz in Budapest left the firm.

Client comment

Canada’s Niko Resources has been using Dentons for a long-running ICSID case against Bangladeshi state entities relating to two gas fields. The company’s vice president Brian Adolph says the firm is “doing an excellent job”. Bart Legum “has exceptional knowledge, experience and skill” in conducting ICSID cases, while Gordon Tarnowsky QC and Anthony Cole in Calgary have been “key” in providing industry knowledge and experience of cases involving corruption allegations.

Chris Outhwaite, director of Customs & Tax Consultancy, says Dentons’ performance in the above-mentioned dispute with the Democratic Republic of the Congo was “outstanding”. Jean-Christophe Honlet demonstrated “excellent analytical skills coupled with the ability to communicate complex legal issues in layman’s terms in both English and French.”

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