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GAR 100 - 12th Edition

Orrick Herrington & Sutcliffe

05 April 2019

A high-profile mining case for Guinea settled while the firm obtained an award for a solar power investor against Italy

People in Who's Who Legal 3
Pending cases as counsel 35
Value of pending counsel work US$8.7 billion
Treaty cases 9
Third-party funded cases 3
Current arbitrator appointments 26 (7 as chair or sole)
Lawyers sitting as arbitrator 4

Orrick’s international arbitration group began on the West Coast of the US, but only gained momentum during the 2000s when it branched into Europe.

In 2005, the firm picked up several members of the highly respected arbitration group at now-defunct firm Coudert Brothers, including some partners in London and Moscow, and the venerable Laurie Craig in Paris. A year later, it absorbed Rambaud Martel, one of Paris’s elite M&A boutiques, adding serious credibility in France. And in Germany it absorbed Hölters & Elsing – home to Siegfried Elsing, one of Germany’s pre-eminent practitioners and arbitrators.

The firm continued to make impressive lateral hires, including Laurent Jaeger, formerly of Latham & Watkins’ Paris, in 2009, and Charles Kaplan in 2013, who had co-headed the international arbitration practice at Herbert Smith Freehills in Paris. Jaeger left the firm in 2018.

The practice launched in Geneva in 2015 with the hire of Vanessa Liborio from Akin Gump Strauss Hauer & Feld. Two years later, Akin Gump’s former practice head Charles Adams joined the same office after a stint as US ambassador to Finland.

Adams now serves as global head of Orrick’s practice. He’s supported in Geneva by James Hargrove, who joined in 2018 from Eversheds Sutherland, where he formerly headed the CIS and Russia disputes group.

Network

The key offices for arbitration are Paris, London, Geneva, Düsseldorf, New York, Hong Kong and Tokyo, with other members of the group based in San Francisco (where the firm is headquartered) and Silicon Valley.

The wider firm has more than 25 offices across Europe, the US and Asia and an affiliated office in Abidjan, Ivory Coast.

Who uses it?

The firm’s strong Parisian arm counts several French-speaking countries among its clients, including Gabon and Guinea (which has been using it on a number of ICSID matters). It has advised mining companies in cases against Mauritania and Mali, and investors in Energy Charter Treaty claims against Spain and Italy over reforms to the renewable energy sector.

On the commercial side, it defended a subsidiary of Dow Chemical in a patent dispute with Germany’s Bayer. Norwegian telecoms company Telenor has repeatedly instructed Orrick since 2006 in disputes stemming from its turbulent business relationship with Russia’s Alfa Group. Engie, Ford Motors, Four Seasons Resorts, Bosch, Total and SGS are also clients.

Track record

The cases for Telenor saw Orrick winning at every step. At the outset, the firm obtained an anti-suit injunction in a New York court allowing an arbitration over a Ukrainian telecoms venture to go ahead. It then won the arbitration, confirmed the award in New York, and obtained contempt of court rulings and large fines against the opponent, Alfa Group, for non-compliance with the award.

Later, Telenor used Orrick again for an UNCITRAL claim against Alfa over some joint interests in Russia’s VimpelCom, which again went in Telenor’s favour. The parties settled in 2010 and created a new joint venture in Amsterdam. But the saga didn’t end there: they entered arbitration again later, with Orrick still behind Telenor in a new dispute over pre-emptive rights that was settled after hearings in 2012.

There have been some impressive defence wins on behalf of Guinea at ICSID. In 2014, it defeated a soft drinks producer’s US$120 million claim by showing there was no evidence that the claimant was under foreign control when it was established. In the following year, the firm knocked out a US$91 million claim by a real estate company, showing that the claimant didn’t qualify as a “foreign investor”.

In a third case in 2016, it helped Guinea knock out the bulk of a €160 million ICSID claim by port operator Getma at the jurisdictional stage (the investor won only €450,000). It has also helped the West African state to annul a €38.5 million OHADA award obtained by Getma in a parallel contract case and prevented it from being enforced in the US courts.

In France, Orrick was part of a co-counsel team that persuaded the Court of Cassation to uphold the annulment of a €403 million award in favour of controversial businessman Bernard Tapie against French state entity CDR on the grounds that it was procured by fraud. The firm also represented an Engie subsidiary in a landmark case that has clarified the power of France’s supreme administrative court to review awards arising from public works contracts.

Recent events

After nine years with the firm, including a spell as worldwide co-head of arbitration, Laurent Jaeger in Paris left to join King & Spalding. Another former co-head of the practice, Robert Sills in New York, left for Pillsbury Winthrop Shaw Pittman.

Two new partners joined from Vinson & Elkins: Mark Beeley in London and James Atkins in Tokyo. Atkins is now global co-head of the firm’s oil and gas practice. 

A long-running case in which Jaeger and others at Orrick had been working alongside DLA Piper came to an end. In January 2019, their client Guinea reportedly decided to settle a US$5 billion dispute with BSG Resources, the mining company founded by Israeli diamond tycoon Beny Steinmetz.

The settlement followed months of negotiations brokered by France’s former president Nicolas Sarkozy and supposedly paves the way for Steinmetz and BSGR to lead the development of Guinea’s significant iron ore reserves. The high-profile ICSID case had hearings livestreamed on the internet. 

A team in Milan and Rome won €7.4 million in damages for solar investor Athena, after a Stockholm tribunal found Italy liable under the Energy Charter Treaty – the first known award against the state in the numerous claims it faces over changes to its regulations governing solar power. King & Spalding represented another successful claimant in the same proceeding.

The same Orrick team is acting alongside King & Spalding to help investment fund ESPF bring an ECT claim against Italy over reforms to the same sector. 

Lawyers in Düsseldorf are defending Macedonia against an investment treaty claim by members of a prominent Indian business family who say their mining and quarrying investments were expropriated.

Frédéric Lalance in the Paris office is advising the Democratic Republic of the Congo’s state mining company Gécamines in an ICC arbitration with a South African company concerning the exploitation of a cobalt deposit, where the amount in dispute is US$923 million.

Client comment

Denis Minca, an in-house counsel at Rompetrol, says James Hargrove and Aisling Vaughan were “dedicated, intelligent and experienced.”

James Keyes, a director of medical imaging company SDBM, says Charles Adams is “undoubtedly one of the most professional and driven lawyers we have worked with” and says his work has been “invaluable”.

A company using the firm for an LCIA matter said James Hargrove and Kieran McCarthy were “technically excellent, clear, insightful, strategic, commercial and pro-active.  Everything that you would hope for from your lawyers.”

Antonino Zucco, head of the gas and fuels legal department of Enel, says he has used Orrick for several years in gas price renegotiations and arbitrations under long-term supply agreements. He says the firm has “a deep knowledge of the gas sector” and price review mechanisms. Orrick is Enel’s “first choice” for such cases in the region, and partner Charles Kaplan is “outstanding”.

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