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GAR 100 - 12th Edition

Torys

05 April 2019

Has carved out a niche in treaty-related cases before the Canadian courts, with Russia among its clients

People in Who's Who Legal 1
People in Future Leaders 1
Pending cases as counsel 3
Value of pending counsel work US$321 million+
Treaty cases 1
Third-party funded cases 1

Torys was formed in 1941 and is one of the “Seven Sisters” – firms who have long been major players in Canada’s legal market.

The firm’s international arbitration practice is integrated within its litigation group, which was started by a number of influential figures in the Ontario litigation bar including Sheila Block.

Barry Leon was the first head of the arbitration practice. He left in 2009 after 35 years at the firm and is now an independent arbitrator with Arbitration Place in Toronto.

The practice is led these days by John Terry in Toronto.

It is increasingly active in investor state disputes, including the setting aside and enforcement of ICSID and NAFTA awards. It has English, French and Spanish capabilities.

Network

The team is entirely based in Toronto with the exception of partner Christopher Richter in Montreal. The wider firm has offices in Calgary, Halifax and New York.  

Who uses it?

Big-name clients include oil companies ExxonMobil, Murphy Oil, Chevron and Norway’s Statoil, as well as Blackberry, Pfizer and Metrolinx. Other clients include Cargill, Windstream Energy, Infinito Gold, Nova Scotia Power, Stans Energy and the government of Russia.

It has also represented the Canada Pension Plan Investment Board and Canada Post.

Track record

Torys secured the largest NAFTA award against Canada to date in 2016, a US$21 million win for US investor Windstream Energy over a moratorium imposed by Ontario authorities on wind energy projects. The award included US$2.2 million in legal costs. Canada paid the award in the following year.

The firm helped US corn syrup producer Cargill defeat Mexico’s challenge to a US$77 million NAFTA award. Canada and the US also intervened on Mexico’s side in the set-aside proceedings, but the Canadian Supreme Court sided with Torys’ client. 

In 2016, the firm successfully defended a US$13.7 million NAFTA award won by ExxonMobil and Murphy Oil against Canada in the Ontario courts. The dispute related to two oil fields located off the coast of the Canadian province of Newfoundland and Labrador and guidelines specifying the amount the oil companies had to spend on research and development.

It also helped Exxon and its partners prevail in 2015 in an UNCITRAL arbitration against the same province concerning their right to deduct operating insurance costs when calculating royalties on crude oil sales. Torys then got the award upheld in the courts of that province.

Going further back, Torys acted for Infinito Gold (formerly Vannessa Ventures) in a billion-dollar ICSID case against Venezuela relating to the termination of its mining rights for a valuable gold deposit called Las Cristinas. A tribunal ruled in 2013 that the termination was justified because the mine’s former owners hadn’t been authorised to transfer their stake to Vannessa. The case lasted nine years, with the parties’ costs totalling US$20 million.

Recent events

Torys helped another group of NAFTA claimants – Delaware company Bilcon and its owners, the Clayton family – defend an award on liability against a challenge by Canada. The Federal Court of Canada upheld the award, which found the state liable for a flawed environmental review process that led to the rejection of the investors’ proposal to build a quarry and marine terminal in the province of Nova Scotia. Torys did not act in the underlying arbitration, in which the investors went on to win US$7 million plus interest out of the US$443 million in damages they had claimed.  

Infinito Gold is using Torys again, this time for a third-party funded ICSID claim against Costa Rica, in which it reportedly seeks US$320 million over the revocation of its concession for the Crucitas gold mine near the Nicaraguan border. The case cleared the jurisdictional phase in 2017.

In a high-profile instruction, Russia has retained Torys for Canadian court proceedings relating to one of the “second wave” of Energy Charter Treaty arbitrations relating to the collapse of Yukos Oil Company. The firm is helping the state challenge an UNCITRAL award that upheld jurisdiction over a US$700 million claim by an alleged investor in the defunct oil company. In April 2018, the Ontario Superior Court of Justice said it would allow new evidence submitted by Russia in support of the challenge.

It acted for Canada’s Stans Energy in its attempt to enforce a controversial US$118 million award against Kyrgyzstan issued by a Russian arbitral institution under the Moscow Convention. The award was set aside by the Russian courts.

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