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GAR 100 - 12th Edition

Wilmer Cutler Pickering Hale and Dorr

05 April 2019

Has helped to obtain settlements in multibillion-dollar cases for Gazprom Export and Kurdistan, also winning a denial of justice claim against Ecuador

People in Who's Who Legal 7
People in Future Leaders 14
Pending cases as counsel 68
Value of pending counsel work US$198.5 billion
Treaty cases 17
Third-party funded cases 0
Current arbitrator appointments 22 (7 as chair or sole)
Lawyers sitting as arbitrator 3

The Washington, DC-based firm’s international arbitration group developed from legacy firm Wilmer Cutler and Pickering’s emphasis on international matters. In the 1980s, famous name partner Lloyd Cutler agreed that he and colleagues should represent Greenpeace in arbitration with France over the bombing of the organisation’s flagship, the Rainbow Warrior. Ten years later, the firm went on to represent Eritrea against Yemen in an arbitration in The Hague.

In both matters, Gary Born, then an up-and-coming member of the firm and former clerk to US Supreme Court Justice William Rehnquist, led the work – beginning a long focus on international arbitration (on which he had already written learned books).

The group formed in London, fuelled by commercial work, most notably a pair of sizeable ICC instructions from Deutsche Telekom. It became home to a mix of common and civil law specialists and was one of the first in London to have a civil law-trained partner (Austrian Franz Schwarz). Today, it has one of the better foreign-lawyer and intern programmes, which encourages this mix. Its advocacy style reflects a blend of the continental and US traditions.

Later openings came in the United States and Germany – by which point the firm was Wilmer Cutler Pickering Hale and Dorr, having merged with US firm Hale and Dorr in 2004.

The original team has remained intact for an unusually long time compared to some of its competitors, though partner Wendy Miles left in 2014 after 15 years with the group.

Born, as chair of the group, is still a key figure – though some of his attention is these days directed towards the Singapore International Arbitration Centre (SIAC), whose presidency he assumed in 2015.

The day-to-day leadership of the practice has now passed to two vice chairs: Schwarz and Rachael Kent. Other key names include John Trenor, Steven Finizio, Duncan Speller, John Pierce and Maxi Scherer.

Network

The key offices for international arbitration are London, New York, Frankfurt and Washington, DC, with others in Berlin, Palo Alto and Boston.

Who uses it?

The practice has a fair few regular clients – and a policy of not naming them. It tends to focus on higher-value work, which in recent years has meant plenty of price-reopener energy disputes. It’s also had a lot of work relating to pharmaceuticals, intellectual property, M&A, financial services, defence, aviation and telecoms.

Clients of public record include Volkswagen, Repsol, Gazprom Export, Switzerland’s Swatch, Deutsche Telekom and Austrian technology group Andritz. It has also done high-profile energy-related work for the Kurdistan regional government of Iraq.

In the investment law area (in which it is not so famous), the practice’s clients have included US drugmaker Merck Sharp & Dohme in a claim against Ecuador; Greek construction company J&P-Avax in an ICSID claim against Lebanon relating to a €360 million power plant; and US miner Newmont and Japan’s Sumitomo in a dispute with Indonesia.

It’s also known for taking on non-traditional, non-commercial cases, such as representing the Sudan People’s Liberation Movement (a former rebel force) in an arbitration with the Sudanese government over the boundaries of the oil-rich Abyei region. The dispute helped determine who could participate in a referendum on Abyei’s future and thus paved the way for South Sudan’s independence.

Track record

WilmerHale defended Kurdistan in one of the largest recent gas disputes to come out of the Middle East – an LCIA case brought by Emirati companies Dana Gas and Crescent Petroleum that gave rise to claims worth US$39 billion. The government settled the dispute in 2017 with a payout of US$1 billion, also granting the UAE companies new exploration blocks. This was after a high-profile enforcement battle in the UK, US, UAE and Dutch courts.

In 2014, the firm won a US$450 million award for Swiss watchmaker Swatch in a dispute with US jeweller Tiffany & Co before the Netherlands Arbitration Institute. The tribunal also awarded Swatch almost US$10 million in costs. The Dutch Supreme Court upheld the award in 2018.

It helped Volkswagen obtain a confidential payout from Suzuki Motor Corporation to settle a US$3.8 billion ICC dispute over a troubled partnership to market eco-friendly cars in Asia. Another case saw WilmerHale help Andritz obtain a €40 million payout to settle an ICC arbitration over Uruguay’s largest pulp mill project.

The firm had a series of wins for Deutsche Telekom including a particularly long-running matter against French telecoms group Vivendi. Although the saga eventually ended in settlement, for the 10 years while it was going on, the German client was regarded as firmly ahead.

The firm pulled off a similar trick for France Télécom in the early 2000s, with Freshfields as opposing counsel.

After the result was handed down in the Abyei arbitration, the firm’s clients reportedly broke into song, they were so pleased. Luka Biong Deng, a senior official in the South’s ruling party, later said the firm’s work was “extraordinary in every way”.

The firm also obtained a favourable partial award in a US$100 million dispute over a gas sales contract involving a state-owned energy company in the Caribbean; and a favourable settlement in a US$3 billion ICC gas pricing dispute.

Recent events

WilmerHale helped Russia’s Gazprom Export settle a price review case with Turkish state-owned pipeline company BOTAŞ over gas exports to Turkey, with the parties reportedly agreeing on a discount worth US$1 billion in the Turkish company’s favour.

It also won a treaty award for Merck, with a tribunal in The Hague concluding that the pharma company had been denied justice in the Ecuadorean courts.

The team helped Dallas-based Kosmos Energy win an ICC claim against its partner Tullow Oil in a dispute over the hire of a drilling rig for use in disputed west African waters that are claimed by Ghana and Ivory Coast. The award left Tullow with a US$50 million liability for hiring the rig.

There was a win for Baker Hughes in a multibillion-euro DIS arbitration with a German oil and gas storage company, with the proceedings seated in Frankfurt. The firm also prevailed for US clients in a long-running case against a Caribbean state entity. Together with Drew & Napier, it helped a Brunei telecoms company defeat a US$100 million claim.

It continues to act for Austrian banks Raiffeisen and Addiko in ICSID claims against Croatia relating to legislation affecting Swiss franc-denominated loans; and for a Russian investor in a luxury railway service for an ICSID case against Belarus.

It is also representing US companies in investment treaty claims against an African state concerning expropriation of land and infrastructure; and an Egyptian chemicals company in a claim against a Middle Eastern state.

Since taking over the presidency of SIAC from Michael Pryles, Born has overseen a series of initiatives, including the release of the centre’s sixth set of rules and new investment arbitration rules for the centre. In 2017, he unveiled a protocol for institutions to cooperate in the consolidation of international arbitrations subject to different rules.

Born and London-based senior associate Jonathan Lim advised Fiji on its new international arbitration act, which was enacted in 2017. The pair were previously part of a task force supporting Somalia’s accession to the New York Convention.

Born continues to sit as arbitrator in several disputes, including investment treaty cases brought against the Czech Republic over reforms to the country’s solar power sector. One of those cases reached a final award in 2017, with Born dissenting from the majority decision favouring the state.

Born subsequently resigned as arbitrator in a pair of ICSID cases over renewable energy reforms after he was unsuccessfully challenged by Spain, apparently on the grounds of his strong dissent in the claim against the Czech Republic.

Scherer was appointed to the board of Delos Dispute Resolution, a new arbitration institution launched in 2014 aimed at cutting time and cost. James Carter stepped down as chair of the New York International Arbitration Centre.

Recently promoted counsel Victoria Narancio left to pursue postgraduate studies.

Client comment

One in-house counsel who used the firm in an LCIA case describes Born as “a living legend”. John Pierce has an “outstanding legal mind and critical thinking skills” and Duncan Speller is a “rising star” with an “impressive grasp of English contract law.”

He describes senior associate Dharshini Prasad as a “strategic thinker” whose advice “positioned our team for success on a large matter”. She is “destined for great things,” he adds.

Alan Crain, chief legal and governance officer at oilfield servicer Baker Hughes, calls the firm “truly masterful.”

“The Wilmer team exercised excellent judgement throughout the proceedings with respect to not calling certain fact and expert witnesses, reducing the planned cross examinations and adjusting to changes in adverse counsel’s assertions,” he says.

Insight

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The Middle Eastern and African Arbitration Review 2019

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