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GAR 100 - 12th Edition

Kirkland & Ellis

05 April 2019

Bringing parallel treaty claims against Spain over a bank sale

Pending cases as counsel 24
Value of pending counsel work US$13 billion
Treaty cases 3
Third-party funded cases 0
Current arbitrator appointments 3 (2 as chair or sole)
Lawyers sitting as arbitrator 2

It is rare for an international firm to earn the largest part of its revenue from court cases, but Kirkland & Ellis does just that, helped by some huge instructions that include defending BP in the multi-district litigation over the Deepwater Horizon oil spill. The size of the firm’s litigation practice has tended to overshadow its name for international arbitration, but Kirkland & Ellis does have a serious practice in this area, working mainly from London and more recently the US.

The firm started to build that capability in 2005 with the hire of partners Christopher Colbridge and Rajinder Bassi from Shearman & Sterling, where Colbridge was head of the London arbitration group. Both their careers began at Clifford Chance. Under their stewardship, the group has grown through a mix of internal promotions and strategic hires.

Colbridge now heads the international arbitration group from London. The US side of the practice has been strengthened by the 2016 hire of Javier Rubinstein, formerly of PwC and Mayer Brown. Rubinstein divides his time between Chicago and New York and brings experience defending Argentina in several ICSID cases.

Two other partners joined in New York around the same time. Lauren Friedman came from Freshfields Bruckhaus Deringer, where she acted for ConocoPhillips in ICSID claims against Venezuela and Ecuador. Lucila Hemmingsen, formerly of Debevoise & Plimpton, also has a focus on Latin America.

Chiraag Shah in London leads the firm’s work on Africa-related disputes, having previously worked at a leading law firm in Kenya.

Network

London remains the anchor of the practice, but it now has capability in New York, Chicago and Hong Kong. There are also litigation partners with arbitration experience in Los Angeles and Washington, DC.

Who uses it?

Big names include Boeing, BP America, Oleg Deripaska’s En+ Group, General Motors, General American Transport, Goldman Sachs, Orascom Telecom, PwC, Samsung and Egyptian telecoms magnate Naguib Sawiris. It counts Chinese insurer Ping An and Kuwaiti logistics firm Agility among its ICSID clients. The firm has also represented chemicals companies Dow and Innospec.

Track record

In 2014, Kirkland & Ellis oversaw an amicable settlement of a US$48 billion LCIA dispute between shareholders in Russian aluminium company Rusal, one of the largest Russian disputes to be heard in London. The firm acted as counsel to Rusal’s controlling shareholder, Jersey holding company En+ Group, which was a respondent in the case.

The firm successfully acted for Boeing in a dispute with two Russian and Ukrainian state-owned entities concerning a joint venture for a satellite launch system. The firm secured awards and judgments worth US$530 million in favour of the client, following an UNCITRAL arbitration seated in Sweden and various actions in the Swedish, Russian, English and US courts.

Colbridge led a team that won a multimillion-dollar award for the UK’s ICS Inspection and Control Services in an ICC claim against Kenya. The win was backed up by a victory at the enforcement stage in the English High Court, including a freezing order on Kenyan assets that secured a full settlement of the claims. ICS’s parent company, Agility, has retained the firm in several other matters, including AAA proceedings against military contractor Dyncorp that saw an award in the client’s favour.

Partner Rajinder Bassi managed to help an automotive client knock out 95% of a €250 million UNCITRAL claim (winning most of her costs too). Relations between the two sides remained sufficiently amicable for them to go on doing business afterwards.

The firm has also achieved a number of favourable settlements, including for the Monier Group in two ICC arbitrations with the Lafarge Group, seated in Paris and Frankfurt. In 2015 it secured a US$78 million settlement for ExxonMobil in a dispute with engineering company WorleyParsons over the flawed design of an oil drilling platform off Sakhalin Island in eastern Russia. Another was for the UN Relief Works Agency for Palestine Refugees in the Near East (UNRWA) in a dispute over a delayed infrastructure project in the Gaza Strip.

Recent events

Kirkland & Ellis is representing a group of Mexican investors in parallel ICSID and UNCITRAL treaty claims against Spain in a dispute relating to the loss of their €600 million investment as a result of the winding-up of Banco Popular. The firm is also acting for the investors in discovery proceedings in US courts and continues to represent them in an ongoing action against the European Commission before the Court of Justice of the European Union over the same matter.

Chicago-based partners Richard Godfrey and Barack Echols acted as co-counsel in an antitrust dispute involving dental products distributors that was heard before the US Supreme Court and could lead to modification of longstanding jurisprudence favouring arbitration.

The firm also secured a new instruction defending Toys “R” Us in a Hong Kong-based ICC arbitration relating to the company’s ongoing bankruptcy saga. Kirkland & Ellis is also representing the firm in US bankruptcy proceedings.

Kirkland & Ellis continues to act for Agility subsidiary ICS in a resubmitted investment treaty claim against Argentina concerning a contract for customs inspection services. ICS’s initial claim against the country – which was filed three years after the client’s original US$25 million claim was dismissed for failure to honour a local litigation requirement in the treaty.

Jon Newman and Philipp Kurek were both promoted to the partnership in London.

In other ongoing work it continues to represent Agility, along with Gibson, Dunn & Crutcher and Kuwaiti firm Meysan Partners as co-counsel, in the first known investment treaty claim against Iraq (being heard at ICSID).

Client comment

Oded Friedmann, legal counsel at shopping centre operator Atrium, says Kirkland provides “detail-oriented” advice while always keeping the big picture in mind. “We needed legal advisers with proven international experience in a number of fields, which we found at Kirkland.”

Naguib Sawiris, executive chairman of telecoms company Orascom TMT, highlights the “commercial sense” of the lead partners who have helped him and his company in several matters. He says Rajinder Bassi and Christopher Colbridge were “more in command” than any other lawyers he has encountered.

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