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GAR 100 - 12th Edition

The GAR 30

05 April 2019

How does one “rank” international arbitration practices?

At first blush, it looks like something that should be easy. After all, they compete head-to-head... so there’s a winner, no? One could simply look at who wins most. Or one could rank based on which firms have the biggest, “sexiest” cases?

And there are surveys that do both. But alas, life is more complicated.

Take “results”. More skilful practices ought to win more – one would think. But define a win. You could ‘win’ $100 million, but if you were claiming $2 billion, and if the client had budgeted for at least $500 million, then $100 million looks more like a loss. Especially if the other side was awarded its costs.

Or you might win a huge case. But the case itself was simple for your side; the other side were plainly in the wrong, and the only reason they didn’t settle was because they couldn’t, for political reasons (a dilemma often faced by governments).

“Size” isn’t much better as a proxy, either, as this story from the back catalogue of the great Jan Paulsson helps to explain.

Back then, Paulsson and his firm at the time (Coudert Brothers) received a small case from an Asian client, about vested rights. About $50 million seemed to be at stake. Except – and here’s the rub – when the team scratched the surface, they found the terms in this dispute with a Middle Eastern agent were repeated in lots of contracts.

Worse, most of the client’s corporate loans contained acceleration clauses. A loss of more than US$5 million and those would become eligible for early repayment.

The small case was far from minor, it turned out.

After a “pretty bloody fight” (which included the discovery of forgery), the client lost – but only $2 million. It was overjoyed.

“A silly summary of the case,” says Jan Paulsson, “would have been that we lost a little case.”

In reality, the client exhaled with huge relief. It treated Paulsson and the rest of the team – plus spouses – to an all-expenses paid trip to the Seoul Olympics.

The opposite is more normal: the seemingly large case that turns out to be pretty small. For a while, it was noticeable how few so-called “billion-dollar investment arbitrations” produced anything like a billion dollars for the winner (in recent times, that has reversed and a number of strikingly large awards have come along – see, eg, Yukos v Russia and Occidental v Ecuador). But that only serves to make the point.

So how can one (reliably) gauge the skill and effectiveness of an international arbitration practice?

Around a decade ago, GAR journalists and the magazine’s editorial board pondered that question, leading to the thought: what about a survey built chiefly on the number of hearings conducted by the firm in a two-year period?

For those new to international arbitration, let’s clarify what we mean by “hearing”: the hearing (particularly the merits hearing) is the closest thing that arbitration has to a day in court. It’s the moment the two sides convene in a hotel room, law firm office or arbitration hearing centre for however many days of oral arguments have been agreed.

Up until then, battle has been joined in correspondence, on the telephone and perhaps a brief in personam meeting to discuss the timetable and process to be used.

There are different types of hearing. Some are purely about jurisdiction; some are purely about merits; some cover both. Some are purely about damages.

For the senior counsel (the advocates), the hearing heralds a period of isolation and prepping – with the proverbial cold towel pressed to the head. (For the younger lawyers, it means sorting out all the logistics of the presentation, and possibly dealing with a more-jittery-than-usual boss.)

If it’s a very important case, the team may have mocked their case – as in, done a dress rehearsal in front of arbitrators hired specially for the purpose.

So – how is the incidence of hearings an indicator of a practice’s level of skill?

As a metric, the hearing has several strengths. First, it’s innate. Just as fissile material emits radiation, so the busy arbitration practice cannot help but produce hearings. Our survey is their Geiger counter.

Second, it’s the same for everyone. Although some firms have complained that their cases tend to settle before a hearing, there is no evidence to suggest anyone has a different settlement rate.

Third, it’s checkable. International arbitration is often confidential, but firms can reveal descriptive, generic information about each hearing (such as language, dates, claim size, opposing counsel, chairman of the tribunal, and so on) without breaching that, and so allow its existence to be verified.

Fourth, real experience is gained in merits hearings. Any advocate will tell you there’s no better gymnasium for the advocacy muscles than going into a hearing, big or small.

So that became the idea. Measure hearings!

Over the years, we have deviated, a little, from the simplicity of that idea. Practices that focus on very low-value commodities arbitration, shipping, etc, pose problems – as do those that handle lots of small CIETAC matters. These could swamp the chart. So now we ignore matters below a certain figure, and cases under certain arbitration rules.

It also became obvious that certain well-renowned DC practices (and a few others) that specialise in large, but slow-moving disputes featuring governments were difficult. (They generate a lot of billable hours and require great skill, but they don’t produce many hearings.) To help their cause, we brought in a column on billable hours charged to international arbitration over two years, so busy practices, where the visible product is intermittent, also have a chance to shine.

We also now give extra credit to hearings for large and super large claims (“bet the company” and “large” cases). Despite having reservations about the meaningfulness of any single claim amount, a pattern is always a pattern. And if a firm has a pattern of high-value cases, well, then that is a good proxy for “skilled and effective”.

We’ve also allowed an element of how practices are rated by their peers to come in, through three columns that look at reputation – in the form of the number of firm members listed in Who’s Who Legal: International Arbitration; the number in the Future Leaders series (a companion to Who’s Who Legal aimed at the under 45s); and the number being appointed as arbitrator. (We added the Future Leaders element to the table this year). So “reputation” is now a component in the final score.

Having collected the data, how do we turn it into the “ranking”?

One can compare the GAR 30 to a class of students. The students get different grades per test throughout their year. But the performance from those tests can’t simply be added together, because what matters is how the students performed on the bell curve, not their actual score. (An “A” doesn’t mean “80% or above”. It means it is in the top 10% of performances – or something close). The more high grades, the better the student’s final score.

So it is with our firms (except the “tests” are criteria recorded in a spreadsheet): lots of A grades (or A+ or A-) mean a high final position in the GAR 30; Bs and Cs mean a mid-table score; and so on.

To clarify, a firm’s final score is made up of the following:

  • the number of hearings (merits and jurisdictional) in a two-year period;
  • the amount of money at stake in those hearings;
  • the hours it billed to arbitration in the past two years;
  • its performance in Who's Who Legal: Arbitration; and Future Leaders: Arbitration; and
  • the number of pending cases in which a firm’s members have been appointed as arbitrators.

“Hearings” are split into four categories according to their value: bet-the-company cases ($1 billion and upwards); large cases ($250 million to $999 million); medium-sized cases ($10 million to $249 million); and small cases (these are ignored, except as a tie-breaker).

Those elements give the firm its final score.

It’s important to reiterate what the 30 doesn’t include.

Firstly, clear case triumphs. A big win won’t make a difference to a firm’s GAR 30 ranking. If this were a factor then Shearman & Sterling would have been the runaway number one a few years ago, after its US$50 billion Yukos award. Likewise Debevoise & Plimpton, Arnold & Porter Kaye Scholer and Squire Patton Boggs, to name but a few in previous years.

Second, being successful – as a business. The ranking doesn’t look at any aspect of a practice’s profitability. What’s more, it’s backwards-looking (in the sense that the hearings that go into the ranking all happened in the two years before the survey date, which, in turn, is about half a year before the GAR 30 comes out). It’s therefore not unusual to see a practice perform well in a new edition of the GAR 30, even as it is losing some of its best people to competitors. Indeed, it can take several editions before changes in the personnel side feed through into the figures the GAR 30 tracks. (In the future we may introduce a column that reflects whether a practice is growing as a business – but there are challenges.)

What’s the secret to succeeding in the GAR 30?

There are two ways to do well.

One – the easier – is to perform better than average across the board. This is the “well-roundedness” route to success. If one looks at the top of the table, this is how White & Case, King & Spalding, Freshfields and others do well year in, year out, and why some other firms are also regularly in the GAR 30, without particularly standing out in any single column. The second way is to do exceptionally well in one or two particular columns and averagely elsewhere. This is the “big-game hunting” route to success, where the firm’s focus is almost exclusively on attracting larger-value work. But in theory, both well-rounded and big-game hunting types of practice can do well.

With that background established, you are ready to find out about this year’s ranking.

The GAR 30 is now 12 years old. During that time, it’s borne witness to tectonic shifts.

In its early years, it seemed to describe an oligopoly. A group of firms that had put the practice on the map – some might say that had built the market – Freshfields Bruckhaus Deringer, Shearman & Sterling, WilmerHale, White & Case, and Debevoise & Plimpton – monopolised the top slots. These “founding father” practices (to coin a phrase) were chased by a pack consisting in large part, of firms now staffed by their alumni.

In the 12 years since the GAR 30 was established, we’ve seen:

  • some of those founding fathers start to wobble –key partners’ joining rivals, or founding their own shops;
  • new names appearing in the 30;
  • the emergence of the dispute resolution boutiques (and international arbitration boutiques within that category); and
  • a big expansion in the size of the chasing pack and the end of the era when certain practices could be sure of finishing at the top.

What does this year’s GAR 30 add to that picture?

You will find this year’s 30 below. This table shows all data behind the ranking except billable hours. It also includes two columns that have no effect on the ranking (“Value of current portfolio as counsel” and “Number of cases settled in two years”) because readers find them interesting. (The full methodology is explained under “Methodology”, below.) This year, 234 firms supplied information, of which we show you the top 30 and the nearest runners-up (the GAR 31 – 40).

(Click for larger image)

GAR 30, 2019

The last edition covered a relatively quiet year, but the GAR 30 is full of change this time around. In 2018, seven firms didn’t even move; this year, 10 firms go up, 15 go down and only two stay the same. There is one completely new entrant, two re-entering after a period away, and four firms dropping out (Sidley Austin, King & Wood Mallesons, K&L Gates and Derains & Gharavi).

As for the picture it portrays, certain aspects jump out:

  • The big boutiques, Quinn Emanuel Urquhart & Sullivan and Three Crowns, finish in the top 10 – again.
  • Two of the founding-father firms finish lower than we are used to – Shearman & Sterling and WilmerHale (though Shearman is actually higher than last year).
  • Certain firms that have visibly invested in international arbitration talent over the past six years go up, especially Squire Patton Boggs, Clyde & Co, Gibson Dunn, and King & Spalding.
  • Two firms that for many years were nipping at the heels of the top three – Hogan Lovells and Allen & Overy – are the big fallers.
  • Clifford Chance and Debevoise & Plimpton – two firms with a grand heritage in the discipline – place higher than they have in a while.

One shouldn’t read too much into any of these changes. But over a series of editions, patterns do emerge. As someone once said, at a certain point, coincidences stop being coincidences and form, instead, the living organism of a new truth.

If nothing else, this year’s GAR 30 underlines how competitive the international arbitration market is becoming. Neither the original founding-father firms nor the original chasing pack can be certain of finishing at the top any more.

1 to 9

This year, Shearman & Sterling, Clifford Chance and Debevoise & Plimpton re-enter the top 10 (Clifford Chance putting in its best performance for seven years), while Hogan Lovells and Allen & Overy drop out.

White & Case – one of the rare founding fathers that has enjoyed stability in recent years – is once again our overall winner.

But for the first time since the 30 started, there is a new name in the top two. King & Spalding climbs seven spots to displace Freshfields Bruckhaus Deringer and take second.

King & Spalding’s rise is not unforetold. In 2010, we said in this publication: “If any US firm has succeeded in emerging from the pack to threaten the traditional rulers of the roost, then it’s King & Spalding.”

Back then, we noted how the firm had just scooped up a former team from Freshfields in Paris (the renowned duo of Eric Schwartz and James Castello) and how the practice as a whole was apparently succeeding in pivoting from its niche – working for investors against states (usually Argentina) – to a far more balanced practice that also handled big commercial cases.

Since then it has continued making astute hires around the world. Around 2010 it expanded in London with hires from Herbert Smith Freehills and Steptoe & Johnson (it now has two QCs on its books in London). In 2013 it recruited in Dubai (the head of disputes from another firm). And in 2018 it added two more names in Paris: Marc-Olivier Langlois (former co-chair of construction disputes at Hughes Hubbard & Reed) and Laurent Jaeger, formerly of Orrick, also well known – with a particular focus on energy and Africa matters. Many of its recent hires are known for construction disputes – a lucrative area.

Ultimately, though, the 30 is most easily understood by looking at the figures. And the most helpful comparison is often, have this firm's figures improved relative to what they were last year?

In the case of King & Spalding, the answer is clearly “yes”. It had seven more “large” hearings in this research period (the past two years) than the one before, and one more “bet-the-company” case (its figures in this year’s table are 10 and seven respectively, compared to three and six in 2018 when it finished in seventh place).

This extra chunk of large and bet-the-company hearings are for the most part oil and gas, mining, or construction matters, usually against a government or a quasi-government entity. Most of them are investor-state matters but some are commercial.

The same comparison can shed light on why Hogan Lovells and Allen & Overy are now outside the top 10.

A year ago, Hogan Lovells posted four more bet-the-company matters and four more large hearings than it does now (five bet-the-company matters versus one, eight large matters versus four this time), and many, many more medium-sized hearings (28 compared with four). The value of the work in its custody – its portfolio of cases by value – has also shrunk. It reports £31.7 billion this year compared with £68 billion in 2018 (and £130 billion or so in 2015).

Have Hogan Lovells' and Allen & Overy's international arbitration practices fundamentally changed?

Probably not. Looking at the “hours billed to arbitration” both look much as they have in previous years (see chart below).

Two firms in the  30 did not provide billable hours data and are excluded from the chart above

But for whatever reason they have produced lower numbers of large and bet-the-company hearings.

In Hogan Lovells’ case, settlement figures were high a few editions ago. So it may be that a raft of large matters came to an end all around the same time, and those it has restocked with are taking time to reach hearings.

In Allen & Overy’s case, the portfolio value is up on a year ago, at $36.5 billion (from $34 billion), but, even then, when measured against other firms at the top of the table, this figure is low. The median value in the top 10 is $81 million, and the average $102 million. If Allen & Overy were still in the top 10, it would look as if it were punching above its portfolio’s weight.

Looking at firms moving in the other direction, Clifford Chance and Debevoise & Plimpton’s year-on-year figures are up.

The practices share a common trait. They each had to spend a portion of the past 10 years trading without their most influential names. Clifford Chance “donated” both its (then) head of arbitration, John Beechey, and its head of Paris office, Jason Fry, plus other key personnel, to the ICC. Its Paris team only reformed properly after 2013.

Debevoise, meanwhile, was without co-chair David Rivkin when he served a term as International Bar Association (IBA) president between 2015 and 2017. The IBA role is intensive and demands personal attendance at all IBA functions around the world; it requires a hiatus from front-line work. During the same time, other members were also away or juggling work with sizeable extracurricular roles (Donald Donovan as president of ICCA and ASIL; Catherine Amirfar, a rising star, as counsellor on international law to the US State Department’s legal adviser.)

And in both cases, those periods are now unwound, and the teams have had a chance to properly reunite and hit their stride.

Their figures for this year show a jump in the hearing columns, compared with 2018.

Clifford Chance’s bet-the-company score has gone from three in 2018 to seven, while Debevoise remains static in bet-the-company hearings (three ) but in “large” hearings goes from seven to 11 – a marked change.

Those “extra” bet-the-company matters for Clifford Chance come in part from mining and metals-related disputes (there’s also the Louis-Dreyfus family-shareholder dispute and an airport-related private equity matter in Asia). Mining appears to be a particular growth area for the team.

Debevoise’s large and bet-the-company hearings arise in part from its success attracting big Asia-related disputes (from China, India and Korea in this edition) and politically sensitive matters (for Qatar and against Albania).

Both firms have increased their portfolio value year-on-year with Clifford Chance’s rising by over $10 billion to $72 billion, and Debevoise edging up almost $2 billion to $65.9 billion.

Clifford Chance substantially increased its hours billed to arbitration too.

10 to 20

Comparing the middle order in this year’s table with that of  2018, three aspects stand out:

  • No Clifford Chance or CMS.
  • Hogan Lovells and WilmerHale arrive in this section (falling five and two places respectively).
  • Cleary Gottlieb, Squire Patton Boggs and Gibson Dunn & Crutcher make the biggest moves.

Over the years, “founding father practice” WilmerHale has generally been found near the top of the 30. In fact, this is its second appearance outside the top 10.

It has though, of late, started to bob around. In the past five years, its has placed: 12th (2019), 10th (2018), 6th (2017), 6th (2016) and 11th (2015). So there is something of a pattern perhaps forming. Before that the firm was 6th (2014), 6th (2013), 5th (2014), 5th (2013), 5th (2012).

WilmerHale’s – slight – change appears more to do with more firms posting improved figures than any fundamental change in its own practice. Its hearing figures in fact approximate last year’s: four bet-the-company cases (one more than 2018) and two large cases (four less than 2018) and six (rather than five) medium-sized hearings. The firm’s billable hours to arbitration were also as impressive.

Strikingly, too, WilmerHale has the second-highest portfolio value in this table (at £198.5 billion – although down on £231 billion a year ago). Only White & Case has a larger current portfolio on its books.

This year’s 30 also shows that WilmerHale now has fewer cases under way as arbitrator than a year ago. So it may be that more counsel work is in the pipeline, which will materialise in the figures in future editions.

Hogan Lovells, by contrast, did see a change in its number from a year ago. It recorded fewer bet-the-company and large hearings than in 2018 (by one matter and four, respectively). The number of medium-sized cases also fell from 28 to 19, and its portfolio value went from $68 billion to $31.7 billion.

It’s unclear what caused the fall – perhaps settlements. The firm’s billable hours score remains comparable to that of previous years, and bigger than many firms above it.

And Hogan Lovells has of course enjoyed considerable “real world” success in the past two years. It is at the heart of the Achmea saga, in which, as counsel to Slovakia, it has made law at every turn since losing the actual arbitration (including recently before the German Supreme Court, in late 2018).

If WilmerHale and Hogan Lovells represent the GAR 30’s “establishment”, then Gibson Dunn and Squire Patton Boggs are practices pushing to join them in that club.

Both have spent considerably to add talent.

Since 2012 or so, Gibson Dunn has added respected figures from Allen & Overy (Jeff Sullivan), Skadden Arps (Penny Madden QC) and Clifford Chance (Graham Lovett, head of disputes in Dubai).

Squire Patton Boggs, meanwhile, recruited Luka Misetic in New York (a Croatian US lawyer who represented Croatia before the International Criminal Tribunal), Alain Farhad (a respected member of the Freshfields team in Dubai), José Feris in Paris (former deputy secretary general of the ICC Court), and Haig Oghigian in Japan – while also offering partnership to several trusted members its existing team.

Very recently, it added Miriam Harwood, the respected investment arbitration specialist, and Ali Gursel from Curtis Mallet-Prevost in New York.

Gibson Dunn (30th in the table in 2018) has improved in both the bet-the-company and the large hearings columns: it’s gone from four bet-the-company items and two large hearings a year ago to six and four now.

Its bet-the-company and large scores arise from matters for Bechtel and the government of Djibouti, and various investors suing states (including solar investors in Spain, and a Middle Eastern telecoms firm upset with changes in Canada).

After bobbing in and out of the 30 between 2011 and 2016, the past three editions have seen Squire Patton Boggs rising steadily: 31st (2017), 23rd (2018), and now 18th.

It has also improved in the same columns as Gibson Dunn – from four bet-the-company cases and one large matter in 2018, to “five” and “three” now.

Its billable hours are also up more than a quarter. Its improved hearing numbers come in part from work for states – among them Qatar, Croatia and Slovakia.

Cleary Gottlieb on the other hand has been a presence in the 30 for some time.

Its current position, 13th, is its highest finish to date, but not by much. Cleary was 18th (in 2018), 27th (2017), outside the 30 but in the 31–40 (2016), 19th (2015), 20th (2014) and 18th (2013).

Its figures have improved on a year ago in one column: the large hearings column (where it went from three to six). It did that while sustaining a six in bet-the-company matters for the second year in a row.

Whether these figures are the new normal for Cleary Gottlieb remains to be seen. But it is notable that for two years now it has posted figures that make it look more like one of the top 10. That said, its portfolio value has fallen back from £125 billion to £75 billion. That could be the value of the Yukos case (in which Cleary Gottlieb represented Russia), which is now past the arbitration stage; or it may be that some high-value matters worked their way through the system in the past two years, in which case its big hearing numbers may fall back. Time will tell.

21 to 30

The final third is probably the most different-looking part of the table.

Four firms from last year – K&L Gates, King & Wood Mallesons, and Sidley Austin – drop out, while three firms – Dentons, Squire Patton Boggs and Gibson Dunn – exit ‘upwards’.

Those vacancies are filled by among others Clyde & Co (up from 31 – 40 in 2018), Reed Smith and Eversheds Sutherland (new entries) and Allen & Overy, which is to be found in this part of the table for the first time.

A&O’s lower finish is one of the more striking features of 2019.

In contrast to some of the firms we’ve discussed, its figures are different from a year ago. In particular it had fewer bet-the-company hearings – two in 2019 compared with five in 2018, and (many) fewer “large” matters – five compared with 12. Its portfolio value is up but only a bit ($36.5 billion from $34 billion in 2018).

Allen & Overy is one of those practices that has suffered from the loss of well-known names over the years. In last year’s 100, we identified eight “names to know”; four of those have since left. They include Judith Gill QC (retirement), Jeff Sullivan (to a competitor), Andrew Pullen (ditto) and Daniel Busse (to his own firm). That follows the loss of Michael Young, co-head of the practice, to Quinn Emanuel in 2016, and others in years before then.

Some may say, well, that’s the explanation right there – losing key people.

That may be part of it, but it’s far from the whole story. It so happens Allen & Overy has posted a line of figures similar to 2019’s before: in 2015, and before that in 2013. Then, its line in the table looked exactly the same in the bet-the-company and large hearing columns (two and three respectively).

But on those occasions it finished far higher: 11th (2015) and 14th (2013). Now it earns 21st place.

What Allen & Overy’s position really embodies is how competitive the ranking has become. The middle of the 30 has evolved into a dense block of firms posting impressive numbers, with very little to separate them. Slip too far from your best performance now, and you fall a long way.

As for why Allen & Overy’s numbers are down – it appears to be partly because certain partners have left (so we moved their big cases to their new firms), and partly because the practice has one or two fewer large energy-related disputes.

But the practice’s billable hours are similar to last edition’s, and much higher than, for example, four years ago. And it has begun adding back strength (recruiting Suzanne Spears from Volterra Fietta in 2018), and promoting a number of associates including the impressive James Freeman in London.

It also succeeded in winning the first ECT claim brought against Spain, during the period in question (for Eiser), which it followed up with another two similar results. So the firm itself probably looks at the recent past as a success.

What about the firms moving in the other direction in this segment of the table?

Alas, Eversheds Sutherland’s debut has as much to do with completing our questionnaire properly for the first time in a few years. But its performance isn’t a surprise. A group within the firm, led by Rodman Bundy and Loretta Malintoppi, has long had a name in public international law, and those cases, when they reach hearings, decide the fate of large sums. Its figures have also improved since the 2017 merger, although the same period did see a number of its rising stars leaving the practice.

Clyde & Co and Reed Smith, meanwhile, slot into the category of firms that have been investing in international arbitration.

Clyde & Co has recruited four extra partners since 2016, three of whom – David Hesse, Peter Stewart and Nadia Darwazeh – were at Curtis Mallet-Prevost in Europe, and Matthew Heywood, a construction disputes specialist, from Osborne Clarke in Dubai, while promoting a tranche of senior associates around the world.

Reed Smith, meanwhile, absorbed half of the illustrious Astigarraga Davis international arbitration boutique in Miami in 2016, gaining the expertise of GAR editorial board member José Astigarraga, who became head of international arbitration.

Since then, the practice has sprung to life – strengthening in Paris, Frankfurt, Singapore and the Middle East (taking three partners from Pinsent Masons and one from Hadef & Partners), and participating more in the extracurricular activities of the international arbitration community. In Paris it recruited Peter Rosher, a respected construction and energy disputes specialist (also formerly at Pinsent Masons).

Elsewhere in the 21–30, Lalive and CMS are two fallers that don’t really deserve to fall; their numbers are much the same as in other editions. Yet both place lower than a year ago.

This is in fact Lalive’s 12th year finishing in our top 30 of international arbitration practices – meaning it has appeared in every edition of the GAR 30. Although its position has yo-yoed in that time, it continues to enjoy some of the best scores in the peer review columns of any non-Top 10 practice (these are the “Who’s Who Legal”, “Future Leaders” and “Pending cases as arbitrator” columns), which bodes well for its future. Lalive is the only firm of a civil law origin in 2019’s ranking. In 2018, it took the striking step of opening in a branch in London. The combination of the Lalive brand name and Swiss hourly rates ought to prove enticing in that market.

31 to 40

GAR 31-40 (in alphabetical order)

  • Ashurst
  • Bae Kim & Lee
  • Bonelli Erede
  • Bredin Prat
  • Chaffetz Lindsey
  • Derains & Gharavi
  • Foley Hoag
  • Gide Loyrette Nouel
  • Norton Rose Fulbright
  • Pinsent Masons

What can the GAR 30 tell us about the health of IA more generally?

So far we’ve concentrated on what the GAR 30 may say about particular firms. Can it also tell us about the market? What does it say about the amount and type of work being handled? Is the ‘pie’ that these practices are competing for getting bigger?

First, the number of significant hearings?

Looking at the past five editions, the number of bet-the-company cases has slowly climbed (see graph A below). This shows an upwards trajectory, bar a dip between 2015 and 2017, which may shadow a fall in the price of oil that began in early 2014.

n 2018 there were 31 firms as two firms were tied in 30th place

During that dip, the total population of bet-the-company hearings included in the table fell from 114 to 91. It then increased by 36 last year, and another three this year to 130 matters across the GAR 30 in 2019.

The large hearings category mirrors this curve (see graph B below). The population of large hearings went from 114 in 2017, to 165 in 2018 and 171 in 2019.

When we look at the size of “portfolios” being reported, however, the graphs go the other way. Portfolios grow steadily between 2015 and 2017. The slight levelling-off can be ignored as, in 2018, the GAR 30 had one extra firm in it (the GAR 30 that year saw a joint 30th place), and one extra line, therefore, of figures.

What about the distribution work within the table?

Are the top 10 firms annexing more of the biggest work?

The answer, apparently, is “no”. graph C (below) shows the percentage of the total bet-the-company hearings’ pot going to the top 10, over time. Far from annexing more, it seems their share of these cases is declining: from 63% in 2015 to 49 % in 2019.

Look at the same graph for large hearings, however, and the line goes the other way: the top 10 annexed 52% of these in 2015 compared to 60% in 2019 (see graph D below).

Where are the lost bet-the-company cases going? To the firms in the 11–20 zone. If you look at graphs E and F below for their share, it is a mirror image of the top 10’s. Their share of large matters is down from 30% to 24%; but their percentage of the bet-the-company cases is up: from 24% in 2015 becoming 36% now!

Right now, we’re not sure why this is happening. But it is worth taking note.

What about the future?

So, how might future editions of the GAR 30 look? Can one get a sense from the current data?

Not easily: the GAR 30, we often point out, looks back. The hearings that it records are, at the time of print, in the past. But three columns do point forwards in time and may offer a clue to where things go from here.

One is “Value of current portfolio”. The bigger the portfolio at a point in time, the greater the chance that some of that size will turn into equally sizeable hearings in the future. (This assumes the size isn’t the result of a single – enormous – matter.)

With that in mind, it is notable that White & Case, WilmerHale and Freshfields currently have the largest portfolios. White & Case’s grew by almost US$60 billion in the past 12 months, as much as the entire portfolios of some other GAR 30 firms. King & Spalding also added a sizeable amount ($26 billion), while Reed Smith and Gibson Dunn’s portfolios both increased by 58% and 37% respectively. Dechert, CMS and Eversheds all recorded their largest ever figures for portfolio value.

The second forward-pointing column is “Future Leaders”. These are practitioners under 45 years old whom peers have identified as the cream of the crop, to our researchers at sister publication Who’s Who Legal. Again, the more of these in the ranks, the better placed a firm ought to be in a few editions (assuming they can retain their talent).

This column shows White & Case and Freshfields (21 future leaders each) Herbert Smith (16), Clifford Chance (15) and WilmerHale (14) as the ones to watch – and Lalive (10).

The final column to mention – which we don’t print in its entirety – is billable hours. These are the hours logged to international arbitration during the research window. Some firms that take part in the survey have difficulty providing an accurate figure, owing to how their accounting systems work; so we avoid putting too much weight on it.

Nevertheless, a good stock of firms do consistently report a figure each year. As such, the “billable hours ranking” (see chart above) provides a useful counterpoint to the main GAR 30 table. While White & Case tops this table as well, thereafter the order differs. Firms that reported substantial increases in billable hours in this edition include King & Spalding, Baker McKenzie, Gibson Dunn, Squire Patton Boggs, Dechert, Lalive, CMS and Ashurst.

Firms that are logging plenty of hours can be reasonably confident they will perform well in the table in the future.

And that is this year’s GAR 30! Our sincere thanks to all the firms who took part.

Methodology

The GAR 30 ranks firms according to a “score” built by adding up several T-scores. What’s a T-score? In brief, it’s a way of converting performance in a particular test so it can be more easily compared with performance in a different test. Thus, law firms, or students, or football teams, can be compared by aggregating a series of different performances without fear that any single test will come to dominate the final “score”. The GAR 30 T-scores cover:

  • the number of merits and jurisdictional hearings during the research period (two years);
  • the number of arbitral appointments members are handling;
  • the number of lawyers who qualified for the latest edition of Who’s Who Legal: Arbitration, our sister publication - this year we have included the future leaders in arbitration category; and
  • the number of hours billed to arbitration in two years.

Furthermore, we subdivided “hearings” into four categories: bet-the-company cases (more than US$1 billion dollars); large cases; medium-sized cases; and small cases (which don’t count towards ranking).

The following is a bit more about the columns in the spreadsheet that count towards the final score (and those that don’t), and the “accounting” principles our researchers use.

The GAR 30 chart

People in Who’s Who Legal – shows how many members of a firm won entry to the 2018 edition of Who’s Who Legal: Arbitration.*

People named Future Leaders in Who’s Who Legal – shows how many members of a firm won entry to the 2018 edition of Who’s Who Legal: Arbitration – Future Leaders.*

Pending cases (as arbitrator) – shows the number of cases in which a lawyer from the firm has been asked to sit as an arbitrator (snapshot on 1 August 2018). It ignores sports and maritime cases, as well as cases at certain sector-specific arbitral bodies or mainland Chinese institutions.*

Merits hearings completed in two years – shows how many merits hearings the firm participated in as counsel or co-counsel during the past two years.*

Jurisdictional hearings completed in two years – shows the same, but for jurisdictional matters. Hearings under a certain duration in commercial arbitrations are excluded.*

Bet-the-company hearings – shows how many hearings were in the US$1 billion-plus range.*

Large hearings – shows how many hearings were in the US$250 million to US$999 million range.*

Medium-sized hearings – shows how many hearings were in the US$10 million to US$249 million range.*

Cases settled – number of arbitrations that ended in a settlement in two years.

Value of current portfolio as counsel – the value of all the claims the firm is now handling as counsel.

Billable hours (unpublished) – the number of hours billed to international arbitration in a two-year period (excluding the work of paralegals, support staff and trainees).*

* Counts towards the ranking.

“Accounting” policies

When deciding whether to include a particular reported matter and what value to assign it, we use the following rules:

  • “If in doubt, leave it out” – if a matter is insufficiently described (for instance, there is information missing on the date and duration of the hearing, the name of opposing counsel, the value at stake, or the name of the presiding arbitrator), it can’t be included in the score.
  • Jurisdictional hearings in commercial cases are only counted if they exceed a certain duration.
  • “One dispute/multiple panels” (different arbitrators) – each hearing is counted.
  • “One dispute/several merits hearings” – count it once.
  • “Disagreement over the amount at stake” (usually affects higher value disputes only) – standardise the value, based on the highest total, and apply that to all firms.
  • “Large claim/small award” – if arbitrators have ruled on the value of a dispute, that award becomes the amount.

The research period was 1 August 2016 to 1 August 2018.

Q&A on methodology

How do you get this data?

Law firms provide it, subject to us agreeing to keep it confidential.

Why do you include jurisdictional hearings as well as merits hearings?

At the request of some firms that do mainly investment treaty work. We count jurisdictional hearings in commercial cases too but only if they exceed a certain duration – to prevent essentially “procedural” hearings being included.

Why do you include billable hours?

At the request of firms that felt they were disadvantaged by the exclusive focus on hearings.

Do you accept the claim sizes asserted at face value?

Yes, but where we know that an award has been handed down, the size of the award becomes the value of the case.

What do you do in the following scenarios?

(i) Requests for declarative relief? The firm usually provides (on background) an estimate of the value of the relief sought, so we use that.

(ii) Emergency arbitrations, hearings on interim measures, ICSID annulment hearings or summary dismissal procedures? We don’t count these.

(iii) Baskets of public international law matters before unique claims tribunals? We tend not to aggregate these into a “bet-the-company” case.

(iv) Test cases? Again, the firm usually explains the value at stake.

(v) Hearings “happening soon”? These aren’t counted. They can go in next year’s survey.

We try to use common sense and caution.

Aren’t these figures entirely self-reported?

Yes, but we do cross-reference the cases mentioned with the other side, where possible. The exception is billable hours, but there it becomes obvious pretty quickly who the outliers are, whereupon we go back to the firm seeking further explanation.

Are there any weightings in the formula?

The scores for the different categories of hearing (particularly the bet-the-company and large range) count a little more. Who’s Who Legal names and portfolio value are moderately important, while appointments as arbitrator count a little less.

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