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GAR 100 - 12th Edition


05 April 2019

Canadian firm is branching out into HKIAC, SIAC arbitration

Pending cases as counsel 5
Value of pending counsel work US$400 million
Treaty cases 1
Third-party funded cases 1
Current arbitrator appointments 1 (1 as chair or sole)
Lawyers sitting as arbitrator 1

McMillan’s international arbitration practice developed around leading Canadian arbitrators J William Rowley QC and Robert Wisner. Rowley, who chairs GAR’s editorial board, retired from the partnership in 2009, and cut his remaining ties with the firm in 2014.

Wisner returned to the firm’s Toronto office in 2007 after many years at investment arbitration boutique Appleton & Associates in Washington, DC. He now co-chairs the international arbitration practice from Toronto with partner Brad Hanna.

Other names to know include Toronto partners Scott Maidment and Markus Koehnen, and Montreal partner Éric Vallières, who specialises in aviation disputes. Max Mendelsohn, also in the Montreal office, regularly serves as arbitrator. Jason Annibele, based in Toronto, is a construction law specialist who acts in both domestic and international arbitrations.

Who uses it?

The group acts for Canadian and international mining companies in investment disputes. Clients that can be named include Glencore, Copper Mesa, Brilliant Resources, aircraft maintenance company Kelowna Flightcraft, automotive supplier Magna and the International Air Transport Association. The firm acted for a consortium of insurers in cases arising out of 9/11.

The firm also has expertise in China-related disputes through its home office, and has represented a Chinese metals manufacturer in HKIAC and SIAC arbitrations.

Track record

In 2016, the firm helped Vancouver-based Copper Mesa win US$24 million in an investment treaty claim against Ecuador over the expropriation of two copper reserves – though the tribunal reduced the damages in view of the violence inflicted on anti-mining protesters by a security force hired by the claimant. Ecuador is challenging the award in the Dutch courts while the client pursues US enforcement proceedings.

McMillan has had a fair amount of success in getting disputes thrown out early or settled. In 2015, the firm helped Brilliant Resources (now Founders Advantage) settle an US$80 million ICC claim against Equatorial Guinea concerning an exploration services agreement. The client dropped the claim in return for a cash payment of US$31.5 million.

Broadly, the firm says it has helped mining, petrochemical and automotive clients settle ICC claims totalling US$100 million, by negotiating new contractual terms that would preserve ongoing business relationships.

The firm has also scored significant victories in enforcement proceedings. For instance, it helped the US’s Cargill defend a US$77 million award against Mexico before Canada’s Supreme Court in 2012, defeating arguments by all three NAFTA states that the arbitrators exceeded their jurisdiction.

It also defended an ICC award in the landmark case Corporacion Transnacional v STET, which established that a deferential standard of review should be applied to international arbitral awards in Canada.

Wisner helped Turkish construction company Entes to enforce a US$23 million UNCITRAL award against Kyrgyzstan in the Ontario courts – trouncing the state’s arguments that its own external counsel in the arbitration had failed to disclose a conflict of interests.

Wisner represented minority shareholders of Eco Oro Minerals in Canadian litigation in which they sought to challenge a third-party funding arrangement for an ICSID claim the mining company is pursuing against Colombia. Eco Oro, its funders and the objecting shareholders announced a global settlement of the litigation in August 2017 that would see a reconstitution of the company’s board of directors and allow all shareholders to participate in the proceeds of the arbitration.

The firm also recently defended Ikea against an UNCITRAL claim seated in Toronto; and a patent licensee in an ICC case seated in New York.

McMillan has paired up with another GAR 100 firm, Milbank, Tweed, Hadley & McCloy, to advise Canada’s Primero Mining on a potential NAFTA claim against Mexico relating to a tax on revenues from a silver mine.

Recent events

In 2018, Robert Wisner defended an LCIA arbitration seeking a 50% share in a mining project valued at US$36 million, leading to a settlement.

The firm also managed enforcement proceedings of the Copper Mesa judgment against Ecuador; the parties reached a US$20 million settlement in July.

The firm is also involved in international construction arbitration regarding claims and counterclaims exceeding US$130 million, which went to a hearing in summer 2018.

Partner Geoff Moysa left to join Bentham IMF.



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