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GAR 100 - 12th Edition

Foley Hoag

05 April 2019

Secured victories for Uruguay, India and Venezuela in investor-state matters and for Mauritius at the ICJ

People in Who's Who Legal 3
People in Future Leaders 6
Pending cases as counsel 20
Value of pending counsel work US$7.2 billion
Treaty cases 14
Third-party funded cases 0
Current arbitrator appointments 12 (4 as chair or sole)
Lawyers sitting as arbitrator 5

Once upon a time, Foley Hoag’s international arbitration practice consisted of the occasional investor-state case, often on behalf of left-wing Latin American governments. Those cases were an offshoot of its higher-profile work in the public international law arena: practice head Paul Reichler was Nicaragua’s advocate in the International Court of Justice case in the 1980s concerning the US government’s support of Contra guerrillas.

Since 2007, the firm has expanded its practice greatly, bringing in additional partners known for investment treaty work, including Ronald Goodman, formerly of White & Case and Winston & Strawn; and Mark Clodfelter, for many years the United States’ NAFTA claims supremo at the Department of State. The collapse of Dewey & LeBoeuf also brought partner Derek Smith to the DC office in 2012.

In 2011, the firm set up an office in Paris – its first outside the United States – with a team poached from Winston & Strawn. The Paris practice was headed by Bruno Leurent until his retirement in 2017 and is now overseen by a more recent hire, partner Andrea Pinna.

Ronald Goodman retired from the firm in 2016, leaving Reichler as sole chair of the international arbitration practice and partner Lawrence Martin as his deputy.

In the same year, the firm launched a United Nations practice group chaired by counsel Christina Hioureas, which advises states on UN procedure and arbitration matters, including before UNCITRAL working groups.

Though it attracts less attention than its investor-state work, the firm also has a commercial arbitration practice headed by partner Daniel Schimmel in New York, who is US and French-qualified.

Network

The centre of the practice is in Washington, DC, but it also has a nine-strong team in Paris and a smaller contingent in New York and Boston (where Foley Hoag is headquartered). International counsel Analía González spends part of her time in Mexico.

Who uses it?

A long list of governments in Latin America, Asia, Africa and, increasingly, Europe. In investor-state disputes, it has advised Bangladesh, Belgium, Ecuador, El Salvador, India, Peru, Slovakia, Ukraine, Uruguay and Venezuela. The firm has also advised Canada on a couple of NAFTA matters.

Bangladesh, Croatia, Djibouti, Ghana, Guyana, Mauritius, Nicaragua, the Philippines, Qatar and Somalia have used it in various state-to-state matters – including before the ICJ and the International Tribunal for the Law of the Sea (ITLOS). It reckons to have been involved in more cases at these two institutions than any other law firm.

Private clients to have used the firm in international litigation and arbitration matters include Orange, Air France, Alcatel-Lucent and Crédit Agricole.

Track record

The firm has an enviably strong record of defence wins for states facing investment treaty claims. For instance, it helped Belgium prevail in its first-ever ICSID case in 2015, defeating a €1 billion claim by a Chinese shareholder in the Fortis financial services group affected by the 2008 global financial crisis.

It has had especially good results for Latin American states. In 2016, it helped Uruguay win the dismissal of an ICSID claim by Philip Morris over cigarette packaging legislation. The case had proved a lightning rod for criticism of the investment treaty system. The state was awarded nearly US$8 million in costs.

A Foley Hoag team helped El Salvador defeat a controversial ICSID claim by Australian-owned mining company Pacific Rim in 2016 over the denial of permits on environmental grounds. The US$250 million claim had attracted the interest of NGOs and provoked protests outside the World Bank.

For Venezuela, it won the dismissal of a US$1 billion ICSID claim by Canadian miner Infinito Gold in 2013 (the case lasted nine years); a pair of US$180 million treaty claims by Canada’s Nova Scotia Power; and a US$633 million ICSID claim brought by Dutch and Panamanian mining investors.

Ecuador is another happy client. In 2010, Foley Hoag persuaded an ICSID panel to throw out a substantial claim by Murphy Oil concerning a tax on windfall oil profits because the investor hadn’t observed a “cooling off” period. After Murphy refiled its case before an UNCITRAL panel, the firm reduced the claim to a final award of just US$20 million plus interest.

In another dispute between Ecuador and Chevron, it succeeded in reducing a US$700 million claim to a US$96 million award in favour of the US oil company (relating to delays in the Ecuadorean court system). That case spawned a groundbreaking state-to-state arbitration between Ecuador and the US, also handled by Foley Hoag.

The firm’s record in the public international law arena is even more impressive. It led the Philippines to victory in a highly publicised arbitration with China over claims to the South China Sea. In 2016, a tribunal in The Hague upheld the Philippines’ position that long-standing Chinese claims to a large part of those waters were without lawful effect under the United Nations Convention on the Law of the Sea (UNCLOS). China did not participate in the case, which has been described as one of the most significant international disputes of the past 20 years.

The firm has obtained good outcomes for Bangladesh in disputes with Myanmar and India over rights to resources in the Bay of Bengal; and helped Nicaragua win three-quarters of a disputed territory in a boundary case at the ICJ against Colombia. In another ICJ case, the firm helped Uruguay defeat claims by Argentina alleging ecological damage caused by a pulp mill on the banks of a river between the two countries.

Recent events

Foley Hoag has continued to bring home stellar results for state clients. In early 2019, it won another ICSID case for Uruguay, defeating a claim by US company Italba on jurisdictional grounds. The tribunal found Italba had failed to demonstrate it owned or controlled a telecoms business that had its licence revoked. Uruguay was awarded all of its attorneys’ fees and costs of US$5.8 million.

The firm also helped India to secure its first-ever win in an investment treaty case, defeating a US$36 million claim by French shipping company Louis Dreyfus Armateurs concerning a failed joint venture at a port in West Bengal.

Thanks to Foley Hoag, Venezuela managed to defeat a US$400 million ICSID claim by UK mining company Anglo American over the alleged expropriation of assets relating to a nickel project.

It also secured a stunning result for Venezuela before the Paris Court of Appeal, which set aside the damages findings in a US$1.3 billion investment treaty award against the state. Rusoro, the Canadian mining company that obtained the award, is pursuing an appeal to the French Court of Cassation. If that fails, a new arbitral tribunal will have to evaluate damages afresh.

Lawyers from Foley Hoag were part of a counsel team that successfully represented Mauritius in proceedings before the International Court of Justice. The ICJ ruled in March 2019 that the Chagos archipelago – which was severed from Mauritius and annexed by the UK in 1965 – forms an integral part of Mauritius’ territory and that the UK must return it “as rapidly as possible”. Foley Hoag previously acted for Mauritius in an arbitration relating to Chagos, which ended in a 2015 award chastising the UK for establishing a marine protection area around the islands in breach of UNCLOS.

In another ICJ matter for Qatar, lawyers from Foley Hoag and Debevoise & Plimpton obtained provisional measures in July 2018 requiring the United Arab Emirates to ensure the reunification of Qatari nationals and their families who have been separated as a result of the Gulf blockade against Qatar.

There has also been a raft of repeat instructions. Mauritius is using it in a pair of investment arbitrations under ICSID and UNCITRAL rules. It is defending Uruguay in another investment treaty case – a US$3.5 billion claim filed by UK investors over an iron ore concession. India is using it again for a claim by Japanese carmaker Nissan.

Panama has also retained it for an investment treaty claim by Spanish construction group Sacyr relating to the expansion of the Panama Canal. It is representing Spain in US court proceedings where the state seeks to resist the enforcement of three Energy Charter Treaty awards in favour of European investors affected by reforms to Spanish renewable energy subsidies.

The firm has been defending Greece in a US court action brought by a US defence contractor seeking to enforce a €48 million ICC award relating to a project commissioned for the 2004 Olympic Games. 

Mélida Hodgson, a partner in the New York office who had been instrumental in a number of the firm’s wins for Venezuela, left the firm in 2019 for Jenner & Block.

Andrea Pinna joined from De Gaulle Fleurance & Associés to become Foley Hoag’s new Paris practice head in 2018. Diana Paraguacuto-Mahéo also joined the partnership in Paris soon after, bringing commercial and investment arbitration experience.

Constantinos Salonidis, a Greek national who has played a role in many of the firm’s recent investor-state successes and is part of the team advising Qatar at the ICJ, was promoted to partner in Washington, DC. 

Client comment

Khurshed Alam of the ministry of foreign affairs in Bangladesh described the Foley team as “outstanding in all respects”.

“They understood the case from the client’s perspective and gained our full trust and confidence. And they did a brilliant job in their written pleadings and oral presentations. They are the complete package,” he said.

Andrea Holíková of the Slovakian ministry of finance praised the firm’s “very professional approach, case management, and creativity”.

Another state client says Foley Hoag is “the go-to” firm for all areas of international law. They praise Salonidis and Christina Hioureas, who is “known and respected by diplomats for her expertise in public and private international law.”

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