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GAR 100 - 12th Edition

Eversheds Sutherland

05 April 2019

Defending Libya in three investor-state claims

People in Who's Who Legal 1
People in Future Leaders 1
Pending cases as counsel 68
Value of pending counsel work US$46.5 billion
Treaty cases 10
Third-party funded cases 0
Current arbitrator appointments 10 (4 as chair or sole)
Lawyers sitting as arbitrator 6

Eversheds Sutherland is the product of a 2017 merger between UK-based Eversheds and US firm Sutherland Asbill & Brennan.

The international arbitration practice has its roots in the public international law work of Eversheds legacy firm Frere Cholmeley. In the early 1980s, one of that firm’s founding partners, Rodman Bundy, began to represent states in boundary disputes at the International Court of Justice. Iran and its national oil company became regular clients, including for matters at the Iran-US Claims Tribunal, and that platform led to more general commercial arbitration work, particularly oil and gas and construction cases.

With the arrival of David Sellers as a partner, Bundy and his team in Paris worked on many of the well-known nationalisation and lex petrolea cases of the decade and a succession of famous ICJ cases going into the 1990s. After Frere Cholmeley merged with Eversheds in 1998, the practice took on more commercial arbitration and expanded its PIL work into ICSID cases.

As a series of mergers expanded Eversheds’ reach in Europe and Asia, the firm began to pull together the various strands of its arbitration work, appointing Zurich-based partner Claudius Triebold to head the firm-wide international arbitration group in 2010. Rising star Will Thomas in Paris took over the role three years later before leaving for Freshfields in 2016.

The international arbitration group is now co-led by Rodman Bundy in Singapore and David Sellers in Paris. The London arbitration and PIL practice is headed by Jonathan Leach, who joined in 2016 from Hogan Lovells, where he had been head of South East Asia disputes.

Network

The key offices for the group are Paris, London, Zurich, Geneva and Singapore (where Bundy relocated in 2013). Other members of the group are based in Hong Kong, Dubai, Doha, Milan and Moscow. The Sutherland merger has added people in Houston and Atlanta.

In addition, there are arbitration-literate partners in Amman, Brussels, Budapest, Helsinki, Madrid, Munich, Riga, Stockholm, St Petersburg, Vienna and Warsaw.

The wider firm has capabilities in Saudi Arabia and Iraq (in Baghdad and the capital of the Kurdistan region, Erbil).

Who uses it?

Recent years have seen the group strike a roughly 50:50 balance between acting for states and investors.

The firm is popular with governments of all types. Iran, Colombia, Yemen, Libya, Indonesia, Egypt, Singapore and Brunei are all clients. Sudan used it for high-profile proceedings at the Permanent Court of Arbitration in The Hague, which redrew the boundary of the oil-rich Abyei region. In addition, Peru, India, Cambodia, East Timor and Slovenia have also used the firm on sensitive inter-state disputes. Other clients include the Polish State Treasury and the China National Petroleum Corporation.

As for private clients, BAE Systems, Eni, Exxon, Heinz, Michelin, Mitsubishi, Orange, Royal Dutch Shell, Samsung, Total, Turkish Airlines and Vodafone have all used the firm.

Track record

The firm scored a tremendous result for Iran in 2014, helping the state win its first-ever investment treaty arbitration. A tribunal threw out a US$600 million claim by Turkish mobile operator Turkcell on the basis that no qualifying investment had been made, and ordered the claimant to pay over €1 million in costs.

Before the merger, Eversheds also acted for Iran Electronic Development Company in a related US$500 million ICC claim by Turkcell’s local subsidiary, which was thrown out in 2012. The firm continues to act for Iran in a number of significant claims at the Iran-US Claims Tribunal, including a mammoth case concerning military sales contracts predating the country’s 1979 revolution.

The firm has also been defending the National Iranian Oil Company in multibillion-dollar claim brought by the UAE’s Crescent Petroleum. The case reached an award on liability in 2014 after a tribunal rejected NIOC’s allegations the contract was procured through bribery. Eversheds also acted for NIOC in an application to set aside the liability award, which was rejected by a court in London in 2016.  

A London team helped Russian businessman Vitaly Smagin win US$84 million in an LCIA case against Russian ex-politician Ashot Yegiazaryan in a dispute over a Moscow mall.

As for state-to-state work, Bundy was part of the advocacy team that helped Peru win much of what it wanted in a maritime boundary dispute with Chile at the ICJ in 2014. A year earlier, he helped India successfully defend its right to build a hydroelectric plant on the Kishanganga river in Kashmir.

In 2017, Bundy led a team that helped Slovenia secure a favourable award in a land and maritime border dispute with Croatia administered by the Permanent Court of Arbitration. However, Croatia has refused to implement the award amid a scandal over alleged misconduct of one of the arbitrators. Slovenia has now taken the matter to the Court of Justice of the European Union.

In 2015, the firm helped Egypt settle a trio of claims brought by a Jordanian investor Ossama Al Sharif over investments in ports and customs operations. The terms of the settlement were confidential.

Going further back, in 2009 it helped Pakistan defeat a US$750 million claim brought by a Turkish contractor.

Recent events

The firm has been reappointed to defend a Middle Eastern national oil company against an US$18 billion claim before a tribunal seated in Geneva.

A team in London and Paris is defending Libya in three unrelated investor-state arbitrations collectively valued at more than US$1.1 billion which have been brought by Korean, Turkish and Emirati investors.

It recently advised Dutch heavy lifting and transport company Mammoet in a dispute over “the Chernobyl arch”, a 110-metre high structure being constructed to encase the destroyed reactor at the site of the 1986 nuclear disaster. It is helping the same client bring a US$120 million ICC claim against Iraq’s state-owned Basrah Oil Company.

The firm continues to defend Slovenia against a €55 million ICSID claim brought by Italian construction company Grassetto.

It saw off a set aside attempt in the London Commercial Court against an LCIA award won by client Qatar National Bank in a dispute with a Nigerian "bad bank" over share dividends.

It represents India in UNCLOS proceedings brought by Italy in relation to the killing of two Indian fishermen by Italian marines off the southern Indian coast in an incident that made global headlines.

The firm has seen a number of personnel changes in the past year. Paul Taylor arrived as the new Dubai-based head of Middle East arbitration with a team from Reed Smith, and Shalagh Massingham was promoted to partner in the same office. Greg Falkof was promoted to partner in London. The firm has also hired or promoted counsel in Abu Dhabi, Dubai, London, Milan and Singapore.

Bundy, meanwhile, was awarded the Order of the Sun, Grand Cross, by the government of Peru for his work for the state in its ICJ dispute with Chile. He has previously received honours from Cambodia and Brunei for his work for those countries.

Insight

Reviews

Regional analysis from arbitrators around the globe, focussing on key developments in specific industry areas and jurisdictions.

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The Middle Eastern and African Arbitration Review 2019

Highlights

CRCICA Overview

Ismail Selim and Dalia Hussein

The Cairo Regional Centre for International Commercial Arbitration (CRCICA)

DIFC-LCIA Arbitration Overview

Alec Emmerson

DIFC Arbitration Institute (DAI)

Robert Stephen, Matthew Harley and Katy Hacking

DIFC-LCIA Arbitration Centre