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GAR 100 - 13th Edition

B Cremades & Asociados

08 April 2020

Representing an investor in a billion-dollar ICSID claim against Honduras

People in Who's Who Legal 2
Pending cases as counsel 8
Treaty cases 7
Third-party funded cases 1
Current arbitrator appointments 24 (9 as chair or sole)
Lawyers sitting as arbitrator 2

Bernardo Cremades followed an unusual career path, starting out as an arbitrator aged 26 then moving into advocacy work. He has been involved, as counsel or arbitrator, in more than 370 proceedings to date, and now focuses most of his time on arbitrator work. Among other roles, he is a member of the International Council for Commercial Arbitration’s governing board and a former vice president of the LCIA. He is a founding member of the Spanish Arbitration Club and was, for many years, president of the Spanish Court of Arbitration.

In terms of his jurisprudential contribution, his name is on many significant awards at ICSID, including cases concerning the formation of an arbitration agreement under an investment treaty; the relationship between contract and treaty claims; the effect of illegality on investment protection; and the definition of an investment. A source in Spain says his “influence can be seen in the most important judicial decisions in the field”, and he had a significant influence on the drafting of the 1998 Spanish Arbitration Law.

In 2013, the King of Spain presented Cremades with the Grand Cross of the Order of St Raymond of Peñafort, in recognition of his services to the administration of justice and the study of law. He has also received a medallion from the Arab Association for International Arbitration recognising him as an “ideal arbitrator in Euro-Arab arbitration” and in 2017 was elected to Spain’s Royal Academy of Jurisprudence and Legislation.

The firm that bears his name, founded in 1969, is home to around 10 lawyers devoted to international arbitration, many of whom also undertake client work. It has a reputation for being Spain’s unofficial university of arbitration: a GAR special report on Spain discovered that at least half of the leading Spanish names in the market had earned their stripes at B Cremades & Asociados.

While many of those colleagues have moved on to pastures new, partner David Cairns is now also a well-known figure in his own right and also sits as an ICSID arbitrator. Educated in New Zealand, Cairns has worked in Madrid since 1999. He has featured in GAR’s “45 under 45” – a list of the leading younger practitioners in the field.

The founder’s son, Bernardo Cremades Jr, joined the firm in 2013 from Curtis Mallet-Prevost, Colt & Mosle in New York. While at Curtis he advised on several high-profile arbitrations, including helping to defend Venezuela in ICSID claims.

Track record

The firm reports two successes for Gas Natural in pricing arbitrations against another Spanish energy company. Several billion dollars were at stake in each case.

Another public win was for Spanish road builder Elsamex in an ICSID claim against Honduras concerning withheld payments for the reconstruction of a road destroyed by a hurricane. A sole arbitrator awarded the company US$8 million in 2012. Honduras later settled with the investor after abandoning its effort to have the award annulled.

The firm has worked wonders for another client, helping to set aside an award in a dispute between a major German textile brand and its Spanish licensee. The firm wasn’t involved in the original arbitration but was instructed in a second arbitral proceeding where damages were reduced by 60% and a counterclaim for more than €243 million was upheld. The firm applied to the Spanish Supreme Court, which held that two of the arbitrators were professionally liable and ordered them to reimburse part of their fees.

Cremades Jr was part of a co-counsel team that won a US$40 million award in 2015 for an investment company owned by Bolivian opposition politician Samuel Doria Medina against a Mexican cement group.

In 2014, the firm also brought home a €61 million win for Spanish shareholders in a multinational food group who brought a claim against its French parent company.

Recent events

Pending counsel work includes representing a prominent Honduran family in a billion-dollar ICSID claim against their home country over the expropriation of their assets.

The firm also acted for the widow of Carlos Gutiérrez-Maturana-Larios y Príes – a member of Málaga’s prominent Larios family – and her two daughters in a US$600 million inheritance dispute. A Madrid-seated tribunal issued a favourable award in 2017, which the Spanish superior court set aside for public policy reasons. In September 2019 the Constitutional Court of Spain admitted the appeal from the widow and her daughters against the set-aside, and is considering the permissible level of judicial scrutiny of arbitral awards.

The firm successfully petitioned a US court to confirm the US$40 million award in favour of an investment corporation owned by Bolivian opposition politician Samuel Doria Medina. The respondents have appealed the confirmation.

Cremades Sr continues to take on high-profile arbitrator work. He is part of an UNCITRAL tribunal hearing a US$12 billion investment treaty claim against Russia brought by former banker Sergei Pugachev. He is also presiding over a US$60 million ICSID claim against Bulgaria brought by two Israeli investors; and he issued an emergency award in July last year refusing to renew emergency relief restraining Georgia from selling attached assets belonging to a Georgian-UK dual national’s tobacco business.

Cairns is part of a panel hearing a US$200 million NAFTA case brought by a Canadian investor against Mexico.

 

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