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GAR 100 - 12th Edition

McDermott Will & Emery

05 April 2019

Continues to defend Germany in a highly publicised case over nuclear power

People in Who's Who Legal 1
People in Future Leaders 3
Pending cases as counsel 35
Value of pending counsel work US$18 billion+
Treaty cases 4
Third-party funded cases 0
Current arbitrator appointments 8 (5 as chair or sole)
Lawyers sitting as arbitrator 4

McDermott Will & Emery (MWE) was working on international arbitrations as far back as the 1990s, representing French, Korean and US clients at the ICC. But attempts to make the transition from the intellectual property field (where it’s very successful) into more of a mainstream international arbitration brand haven’t always run smoothly. A bolt-on team in London seemed poised for success, then splintered.

Since then, the firm has taken steps to return to the main arena with some solid partner hires that have restored know-how and credibility. In 2012, it welcomed English barrister Jacob Grierson in Paris (formerly of Jones Day and an authority on the new ICC rules).

In the same year, it recruited a duo from K&L Gates who specialise in investment arbitration: Sabine Konrad in Frankfurt and Lisa Richman in Washington, DC. Konrad is one of Germany’s nominees to ICSID’s roster of arbitrators as well as the founder of the Frankfurt Investment Arbitration Moot, now in its 11th year.

Konrad brought with her one of MWE’s weightiest instructions – the defence of Germany in a €4.7 billion Energy Charter Treaty claim brought by Swedish state-owned power company Vattenfall. The closely watched ICSID case, which concerns Germany’s decision to hasten the phase-out of nuclear power in response to the 2011 Fukushima crisis in Japan, went to a hearing in 2016 and a final award is now awaited. Some have suggested the outcome of the case may determine the EU’s future approach to investor protection.

Network

The main offices for arbitration are Paris, Frankfurt, New York and Washington DC, though it also has partners with international arbitration experience in Milan and Boston. The firm has an affiliated office in Shanghai: MWE China Law Offices, led by John Huang.

Who uses it?

Besides Germany, the firm’s ICSID clients include Poland, Taiwan’s Chinese Petroleum Company, German airport operator Fraport and Sweden’s Lundin Petroleum. German banks LLBW, HSH Nordbank, Helaba and Nord/LB are using the firm for an Energy Charter Treaty claim against Spain concerning reforms to renewable energy subsidies. Italian waste management company ASA International retained it for an investment treaty dispute with Egypt that settled in 2016.

Other names to have used MWE include Honeywell, Blackwater Security Consulting, private equity funds Patriarch Partners and Ewing Management Group, German electrical-goods maker Schwabe, German chemical company Evonik Degussa and Senegal’s Wari Group.

A lot of clients are from IP-rich fields such as life sciences and pharmaceuticals.

Track record

In 2011, the firm helped Bionol Clearfield obtain a US$230 million award against Getty Petroleum Marketing in a dispute over an ethanol plant in Pennsylvania. The award included US$47 million in damages and over three times as much in future damages.

At ICSID, the firm helped Swedish oil company Lundin win a US$25 million award against Tunisia in 2015 in a dispute over tax, also defeating a US$130 million counterclaim. It has helped two German eco-tourism investors win a US$4 million award against Costa Rica in 2012. While at K&L Gates, Konrad and Richman helped Poland to defeat a US$35 million claim brought by US investors in a blood plasma laboratory.

In China, the firm succeeded in enforcing two SIAC awards before the Wuxi courts in 2013 – no mean feat. It also gained the upper hand in a dispute between a US medicine company and its Taiwanese joint venture. The Taiwanese side handed over control of a Chinese pharmaceutical company to the US party, following a multi-pronged assault that saw MWE obtain ex parte attachment orders over personal residences in Taipei.

Recent events

Along with co-counsel from Quinn Emanuel Urquhart & Sullivan, a MWE team led by Grierson defeated a set aside application in the Paris Court of Appeal in relation to a US$120 million ICC award in favour of a company owned by Brazilian philanthropist and socialite Lily Safra. The shareholder dispute involved the owners of Brazil’s largest supermarket chain.

Grierson continues to act for the Wari Group in an ICC claim against Luxembourg telecoms group Millicom relating to the sale of Senegal’s second-largest mobile operator, Tigo. Two other related ICC cases are also under way.

The firm is advising a group of German banks in an ECT claim against Spain over their investments in renewable energy plants affected by the revocation of subsidies. In February 2019, an ICSID tribunal rejected Spain’s jurisdictional objection based on the European Court of Justice’s Achmea decision on intra-EU arbitration, allowing the case to continue.   

MWE found itself arguing the opposite side of the “intra-EU” question in the Vattenfall case, failing to persuade the tribunal that the ECT claim against Germany should be dismissed in the wake of Achmea.

Germany later failed in its bid to have the entire Vattenfall tribunal disqualified – after ICSID agreed to refer the challenge to the secretary general of the Permanent Court of Arbitration for a recommendation. Konrad and another Frankfurt-based partner, Arne Fuchs, are handling the case.

Client comment

A client using MWE in an energy sector dispute says it is “very happy” with the firm and singles out Konrad and Fuchs for particular praise, saying their “clear advice and willingness to fight for their clients is second to none.”

Mathias Wolkewitz, general counsel at German crude oil and natural gas producer Wintershall, says his company has used MWE for a number of years and that Konrad is “the most outstanding person in international arbitration,” particularly in investor-state matters. “Her knowledge, strength on the facts and in advocacy as well as her dedication are without comparison,” he says, also describing Fuchs as very strong on all legal topics and possessing “remarkable tactical strength.”

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