A leading international brand in project-related disputes, with particular clout in Asia
|Pending cases as counsel||13|
|Value of pending counsel work||US$3.8 billion+|
|Third-party funded cases||0|
|Current arbitrator appointments||3 (0 as chair or sole)|
|Lawyers sitting as arbitrator||1|
Milbank Tweed’s international arbitration practice grew from the white-shoe firm’s long-standing project finance prowess, which has expanded globally; it regularly wins awards for its work in Asia. In one of the firm’s first forays into international arbitration, name partner John McCloy acted for US oil companies on the arbitrations that followed the nationalisation programme in Libya in the 1970s. Since then, the firm has appeared regularly in commercial arbitrations – often on project matters – and has also acquired expertise in investment law work, including Energy Charter Treaty disputes.
These days, Washington, DC-based partner Michael Nolan leads the practice and receives enthusiastic plaudits from clients. He sits on the international advisory committee of the American Arbitration Association, the users’ council of the Singapore International Arbitration Centre (SIAC), the panel of ICSID arbitrators and the British Virgin Islands International Arbitration Centre panel of arbitrators.
The firm established a presence in London when it hired former DLA Piper partners Julian Stait and Tom Canning in 2009 and 2010 respectively. Stait is known for his regulatory and investigations work, while Canning has experience in energy and infrastructure disputes.
The main offices for international arbitration are Washington, DC, and London, though there are also members of the group in New York. The wider firm has offices in Los Angeles, Frankfurt, Munich, Beijing, Hong Kong, Tokyo, Seoul, Singapore and São Paulo.
Who uses it?
Milbank has acted for governments and state entities in South Asia as well as other state-owned companies across the Middle East, Southeast Asia and Eastern Europe. The firm has represented claimants in ICSID cases against Venezuela and the Philippines; and defended Mongolia in several high-stakes cases.
On the commercial side, Milbank has advised Bayer Cropscience; Bloomberry Hotels and Resorts (in a dispute relating to a casino in the Philippines); US private equity firm Cerberus; Bermuda’s Asia Broadcast Satellite; Japan’s Chubu Electric; India’s Essar Group in various matters in the steel industry; and satellite television company DirecTV. It has also represented Atlantic LNG in a major gas-pricing arbitration and related court actions, and acts for various Asian banks in construction disputes arising from projects in Singapore and Indonesia.
Nolan’s position as general counsel of the Intellectual Property Owners Association has boosted the firm’s exposure to IP arbitration proceedings on behalf of patent, trademark, copyright and trade secret holders.
Mongolia’s faith in Milbank was rewarded once again in 2017 when it knocked out a US$500 million bilateral investment treaty claim brought by three Chinese state-owned entities at the Permanent Court of Arbitration. Victory for the state was crucial – the claim was worth a quarter of the state’s annual budget. A challenge to the award is pending in the US courts.
The firm obtained a US$455 million award in 2015 for its client Bayer Cropscience in a patent dispute with Dow Agrosciences relating to a herbicide-resistant gene used in genetically modified crops. The award was upheld by a US appeal court in March 2017, with the US Supreme Court refusing Dow leave to appeal the ruling later that year.
Back in 2011, Milbank helped Mongolia to defeat a US$1 billion claim over a windfall profit tax. Although the panel did uphold a less substantial claim, the Russian claimants decided to abandon the case all the same. The firm also helped Mongolia settle an Energy Charter Treaty claim back in 2006, and has continued as counsel to the government in further important matters (see below).
Another eye-catching result came in 2010 when – along with various other firms, including K&L Gates and King & Spalding – it persuaded an ICSID ad hoc committee to annul an award blocking their client Fraport from pursuing a claim against the Philippines over an airport concession. The annulment was shortlisted for “Win of the Year” at the first GAR Awards in 2011. However, Fraport’s resubmitted claim for US$425 million was dismissed in 2014.
The firm represented US broadcaster DirecTV in a dispute arising out of AXA’s alleged wrongful repudiation of its insurance coverage in the amount of US$40 million for a satellite launch, in which the panel held the insurer liable for damages for breach of the policy.
March 2018 saw an ICC tribunal render a final award in favour of Millbank’s client, Hong Kong satellite operator ABS, in a dispute with South Korean telecoms company KTSat. The dispute arose out of the sale of a satellite to ABS, which KTSat later said was illegal under Korean law, leading the Hong Kong company to terminate the deal and instigate arbitration proceedings. Milbank secured a partial win for ABS in 2017, when the tribunal ruled that it had a valid title to a satellite. The final award settled the remainder of the issues, including the calculation of damages and legal fees.
The firm also achieved a win for a state-owned Qatari entity in a US$200 million ICC dispute, seated in London, related to project and engineering claims under an EPC contract for a billion-dollar energy project in the country.
Nolan is currently representing Eolica Tres Mesas – two companies owned by Goldman Sachs Infrastructure Partners and Grupo Bursatil Mexicano – in their bid to enforce an ICDR award worth almost US$15 million against Abengoa Mexico in the New York courts. Abengoa brought a claim against the companies when they terminated a windfarm contract citing alleged breaches.
The firm continues to represent Mongolia and is currently defending it in proceedings brought by an Australian investor under the Arbitration Rules of the Stockholm Chamber of Commerce seeking more than US$130 million in damages for alleged violations of the Energy Charter Treaty.
One of Turkey’s largest state-owned banks, Ziraat Bank, is using Milbank in a US$2.8 billion shareholder dispute concerning ownership of Turkey’s national mobile operator Turkcell, which has been playing out in LCIA arbitrations and court proceedings in the British Virgin Islands and before the UK Privy Council.
Other engagements that are keeping the firm busy include acting for a power project developer in an LCIA arbitration commenced against its partners concerning the development of a power plant in Côte d’Ivoire; representing a state-owned power purchaser in ICC proceedings seated in Singapore relating to payment disputes under a long term purchasing agreement; and counselling a Bahraini company in DIFC-LCIA proceedings arising from alleged breaches of a franchise agreement.