The Brussels boutique continues to represent Russia in relation to the Yukos dispute
|People in Who's Who Legal||5|
|People in Future Leaders||1|
|Pending cases as counsel||6|
|Value of pending counsel work||US$105 million|
|Third-party funded cases||0|
Hanotiau & van den Berg was one of the earliest arbitration boutiques, founded in 2001 by Belgian Bernard Hanotiau, a former partner at CMS Derks Star Busmann in Brussels; and Dutch arbitrator Albert Jan van den Berg, formerly of Freshfields Bruckhaus Deringer in Amsterdam. They chose the boutique model partly to avoid the conflicts of interest that were part and parcel of practising at a large firm – and declared English the official language of the firm. Other founding partners still at the firm are Paul Lefebvre and Pascal Hollander.
Other names to know at the firm are partners Niuscha Bassiri and Pierre Vermeire, and counsel Maarten Draye, who operate mainly from the Brussels office and occasionally from Singapore. They all sit as arbitrators too.
Musing on the firm’s success at an event to mark its 10th anniversary in 2011, van den Berg said the firm had turned out to be “a much better proposition” than he thought. “When we set it up [without external financing] I’d have been happy to cover my costs. I’ve been delighted with the constant flow of business.”
A lot of its success can be attributed to canny hiring and the diversity of nationalities at the firm – almost half the lawyers are from foreign jurisdictions.
Over the past 18 years, the name partners have grown into two of the world’s most in-demand arbitrators. In every cycle of research for Who’s Who Legal: Arbitration, the pair finish among the most highly regarded individuals (in the 2016 edition, Hanotiau was named arbitration lawyer of the year, while in the 2017 edition it was van den Berg).
Van den Berg is an acclaimed specialist on the New York Convention and served as president of the International Council for Commercial Arbitration (ICCA) from 2014 to 2016.
A few years ago, the firm announced it had stopped taking instructions as counsel in investor-state arbitrations to avoid the risk of perceived issue conflicts arising from the partners’ work as arbitrators. The policy means the firm won’t act as counsel in arbitrations brought under investment treaties or domestic laws on foreign investment, or in ICSID annulment proceedings. It does, however, continue to act as counsel in commercial arbitrations as well as in set-aside proceedings in national courts.
It’s in this last capacity that the boutique achieved its highest-profile victory to date, when van den Berg helped Russia persuade a court in the Netherlands to set aside the US$50 billion Energy Charter Treaty award in favour of the former majority shareholders in Yukos.
When the firm opened in 2001, one of its immediate difficulties was its Brussels location. “We weren’t in London, New York or Paris, or one of the major centres of arbitration,” remembers Hanotiau. That actually proved a non-issue, but in any case the firm does now have an office in a major arbitration hub: Singapore. It took space in Maxwell Chambers in 2012.
Who uses it?
Russia and Croatia are known to be clients. The firm is coy about disclosing its commercial clients and few of its cases as counsel end up in the public domain, so it is hard to give a longer list.
As already mentioned, the firm achieved headline-grabbing results after being approached to handle Russia’s challenge to the US$50 billion Yukos awards. The District Court of The Hague annulled the award in 2016 after finding that Russia was not bound by the Energy Charter Treaty, which the state had never ratified. An appeal is pending.
Meanwhile, Hanotiau & van den Berg also helped Russia fend off the shareholders’ attempts to collect on the award in Belgium. In June 2017, the firm persuaded a Belgian court to lift a freeze on Russian owned real estate and bank accounts in Brussels that had been granted two years earlier. A few months later, the Yukos shareholders withdrew their enforcement proceedings in France and Belgium altogether, saying they “no longer made economic sense”.
In one of its final investor-state cases as counsel, the firm helped a family of Belgian investors win a US$2 million ICSID award against the east African state of Burundi for the indirect expropriation of a bank.
In the same year, van den Berg helped Croatia defend an UNCITRAL award in Dutch set-aside proceedings brought by Austrian casino operator Adria. The award, which rejected the investor’s €60 million claim, was upheld by the court.
The firm continues to represent Russia in proceedings before the Court of Appeal of The Hague, where the former majority shareholders in Yukos are trying to reinstate their awards. The court issued a ruling in September 2018 refusing to strike out Russia’s submissions regarding the shareholders’ alleged “unclean hands”, also holding that allegation s of procedural fraud in the arbitration are inadmissible.
Van den Berg described the ruling as a “major victory” for Russia, “since the ‘unclean hands’ arguments, as well as the issue of whether the Yukos shareholders satisfied the definitions of investor and investment within the ECT, remain in contention.”
Meanwhile, Van den Berg was selected as one of a handful of arbitration specialists to feature on a new committee of international commercial experts that will advise the China’s Supreme People’s Court on the proposed China International Commercial Court. He has also been appointed by the HKIAC to its new nominations committee that will identify, vet and recommend new members for its council.
Romanian national Iuliana Iancu, who joined the firm in 2012, has been promoted to counsel. Two members of the arbitration team, Charlotte Villeneuve and Véronique van den Berg, left the firm to move in-house at NATO Support and Procurement Agency and H&M BeLux, respectively.
The two name partners, meanwhile, appear to be as busy as ever, as arbitrators. Hanotiau sat on the first ever five-person ICC tribunal, which heard a US$3 billion dispute between four shareholders in Angolan telecoms company Unitel over unpaid dividends and other alleged breaches of a shareholders’ agreement. He also sat on panels hearing cases against Cyprus, Tunisia, Columbia, Ivory Coast, Bosnia, Montenegro and Turkmenistan, among others.
Van den Berg, for his part, was appointed by Vietnam to sit on a panel that will hear the first ever ICSID claim against the state. He was also appointed by a subsidiary of China National Petroleum Corporation to hear an ICC claim against a Costa Rican state entity, and by German financial services company Portigon to hear another solar-related claim against Spain.
He continues to sit on an ICSID tribunal hearing a €4.7 billion Energy Charter Treaty claim filed by Swedish investor Vattenfall against Germany over its phase-out of nuclear energy.