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GAR 100 - 12th Edition

Lalive

05 April 2019

The Geneva based firm opened in London, saw off a billion-dollar claim against Mauritius and won a new mandate against Russia

People in Who's Who Legal 9
People in Future Leaders 10
Pending cases as counsel 35
Value of pending counsel work US$12.7 billion
Treaty cases 10
Third-party funded cases 1
Current arbitrator appointments 63 (35 as chair or sole)
Lawyers sitting as arbitrator 13

Lalive is one of the oldest international arbitration practices in the world, having operated in Geneva since the 1950s. The firm takes its name from two brothers: the late Jean-Flavien and Pierre Lalive. Its reputation in the field is mostly down to Pierre, who was described in Dealing in Virtue (Yves Dezalay and Bryant Garth’s sociological study of private justice in the commercial sphere) as the “grand old man of Swiss arbitration”. He died in 2014 aged 91.

Under the brothers’ leadership, members of the firm participated in some of the first major international arbitrations that followed nationalisations by petrol-states, including Sapphire International Petroleum v National Iranian Oil CompanyTexaco v Libya and Kuwait v Aminoil. It also acted in early ICSID cases and state-to-state disputes before the International Court of Justice.

The firm relaunched in 1994, bringing on board partners Michael E Schneider and Teresa Giovannini. Schneider, a former president of the Swiss Arbitration Association who now serves as vice president of UNCITRAL, is arguably the firm’s figurehead today. Under him, Lalive continues to rule the roost in Switzerland, with arguably the largest team of full-time arbitration specialists of any Swiss firm – including such well-respected figures as Veijo Heiskanen, Matthias Scherer, Domitille Baizeau and Bernd Ehle.

Long based in Geneva, the firm is increasingly active in Zurich, where it recruited a team from Walder Wyss in 2014. It also took the bold step of opening an office in London in 2018.

Today, the firm has a reputation in the field to rival that of major international law firms (as its continued presence in the GAR 30 attests). The firm prioritises global commercial and investment cases: that is, work with no strong nexus to Switzerland. It has assembled a multinational, multilingual team of lawyers, similar to those found at Shearman & Sterling and Freshfields Bruckhaus Deringer, where many Lalive lawyers trained. It seeks very little co-counsel work of the type other Swiss firms regularly undertake. It also has a strong focus on public international law.

Network

As well as offices in Geneva, Zurich and London, the firm has had a presence in the Qatari capital of Doha since 2006.

Who uses it?

Like most Swiss firms, Lalive doesn’t like to name clients, but the governments of Switzerland, Mauritius, Ecuador, Romania and Turkey are known to have used the firm for investment treaty work. Turkish state pipeline company BOTAŞ is one of many clients to have used the firm in gas price review cases.

Other clients on the public record include Polish mobile operator PTC; Swiss energy trader EFT; Hong Kong oil and gas company Petrotrans (for a claim against Ethiopia); and US tobacco group Philip Morris.

Track record

One of the firm’s biggest recent successes was for Turkey’s BOTAŞ in a price review claim against the National Iranian Gas Company. Lalive secured a final award in 2016 granting the client a 13.3% retroactive cut in price of gas. Iran honoured the award with US$1.9 billion worth of free gas deliveries to compensate BOTAŞ for overpayments, with the Turkish company set to make billions more in savings over the life of the contract.

Another huge case for Turkey saw Lalive defeat a US$3.5 billion Energy Charter Treaty claim – part of the state’s long-running feud with the family of Turkish businessman Cem Uzan over a hydropower investment. An SCC tribunal threw out Uzan’s latest claim at the jurisdictional stage in 2016 after finding that he wasn’t a foreign investor at the time he made the disputed investment despite his later residence in the UK and France.

An unrelated ICSID case against Turkey saw Lalive win the dismissal of a real estate investor’s claims in 2014 on the grounds that the actions of majority state-owned entity weren’t attributable to the state.

The firm has also helped Romania avoid substantial payouts on more than one occasion. In 2015, it knocked out the bulk of a €440 million ICSID claim brought against the state by a US investor in a hotel and press distribution business. The claimant received just €8 million plus interest.

In another long-running case for Romania that ended in 2013, an ICSID tribunal refused to award any damages to oil investor Rompetrol despite holding the state liable for irregularities in a criminal investigation.

Among its successes in the Swiss courts, it defeated Russia’s attempt to challenge a jurisdictional ruling in one of the “second wave” Yukos cases, a US$13 billion Energy Charter Treaty claim by Luxembourg company Yukos Capital. The court said the challenge was premature.

The firm was also on the winning side in Swiss court proceedings arising from the bitter Elektrim v Vivendi case. It has managed the rare feat in Swiss practice of obtaining stays of enforcement on more than one occasion.

Recent events

Lalive launched its London office in September 2018. It is headed by partner Marc Veit, who is relocating from Zurich, and Timothy Foden, who joined the firm from Quinn Emanuel Urquhart & Sullivan and was promoted to the partnership ahead of the launch. Heiskanan, Baizeau and Noradèle Radjai from the Geneva office will also spend time in London building the practice.

Melissa Magliana joined the firm’s Zurich office from Homburger. Sam Moss and China Irwin were both promoted to counsel in Geneva.

The firm had a standout result for Mauritius, defeating a US$1 billion UNCITRAL claim by French-Mauritian businessman Dawood Rawat. The tribunal found that the France-Mauritius bilateral investment treaty implicitly excluded claims by dual nationals of the two states.

Lalive is also defending Mauritius against a €12 million treaty claim by French investors Christian and Antoine Doutremepuich over an aborted plan to establish a laboratory for DNA analysis.

Ukraine’s state owned electricity company Ukrenergo instructed the firm for a treaty claim against Russia over the expropriation of assets in Crimea. Damages have yet to be quantified but press reports have suggested the assets are worth over US$1 billion. Lalive has paired with Ukrainian firm Integrites on that case.

Another Crimea-related case saw Lalive defend a pair of jurisdictional awards in favour of Ukrainian oil and gas companies against Russia in the Swiss Supreme Court. After a rare public deliberation, the court agreed with the arbitrators that Russia has assumed responsibility under its BIT with Ukraine to protect Ukrainian investments in Crimea made prior to the Russian annexation of the territory in 2014.

Australia’s Prairie Mining retained the firm for a potential Energy Charter Treaty claim against Poland, saying that state authorities have unfairly obstructed the development of two coal-mining projects. 

Client comment

Cristina Viteri from Ecuador’s attorney general’s office says Lalive has been representing the state since 2011 in a variety of arbitration work, including a treaty claim over mining concessions and a commercial arbitration with a Latin American state-owned entity over a failed telecoms joint venture. She praises the firm’s “extraordinary depth” of experience and the “brightness of its lawyers”, saying its work for the state has been “of fundamental importance”.

She adds that the firm’s attorneys are “hard-working and pragmatic” in their approach to strategy. Veijo Heiskanen has “an extraordinary legal mind” and is “very impressive”, while Domitille Baizeau is “an outstanding strategist who leave sno stone unturned” as well as a “powerful and effective” advocate.

Viteri also praises counsel Jaime Gallego as “one of the most complete arbitration lawyers of his generation” with an “encyclopedic knowledge” of the facts of a case and great cross-examination skills. Counsel David Guerra Bonifacio is also a rising star, she says.

A public official for another state that has used Lalive for ICSID and SCC disputes worth billions says the firm was “very confident in the hearing” and that most of its arguments “hit directly to the point”.

“What distinguishes Lalive is that they don’t try to mislead or manipulate the tribunal,” he adds. Heiskanen, Scherer, counsel Laura Halonen and associate Alptuğ Tokeşer are “extraordinary lawyers and decent individuals”.

A general counsel at a Finnish corporation used Lalive for a dispute with a customer over an industrial construction project, saying the firm’s expertise in this field was “outstanding” and “way head of that of local competitors in Finland”. Heiskanen is “unique” and his “ability to swiftly jump into a complex matter was extraordinary”, she adds.

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