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GAR 100 - 4th Edition

Sidley Austin LLP

18 February 2011

Sidley Austin was one of the first firms to handle treaty arbitrations in the 1990s as a complement to its leading trade law practice.

People in Who’s Who:
2
Pending cases as counsel:
63
Value of pending counsel work:
US$12.3 billion
Treaty cases:
14
Current arbitrator appointments:
23 (of which 9 are as sole or chair)
No. of lawyers sitting as arbitrator:
8

The core of the current international arbitration practice can be traced to 2002 when the firm brought in Daniel Price and 30 other lawyers from a DC and Geneva trade-law boutique. Price was one of the first US attorneys to advocate that companies take commercial advantage of the growing network of international treaties. Their arrival kicked both arbitration practice and WTO disputes practices into high gear.
In 2008, the collapse of Heller Ehrman gave the firm a practice in the field in Asia.
More recently it has added two partners in Geneva, deepening its experience in contract-arbitration. Marc Palay, the more senior of the arrivals, joined from Winston & Strawn, while David Roney was a partner at Schellenberg Wittmer.
The arrivals mean that after many years with a tilt towards investment work the practice area now looks more balanced.
The firm has also revised the global structure of its disputes practice, to make trade, investment and commercial arbitration a single entity. Stanimir Alexandrov, Ing Yoong Lang and Marc Palay are the group’s global coordinators. Alexandrov is a former vice minister of foreign affairs in Bulgaria with a reputation in investment cases. Ing Loong Yang works from Singapore where he has a particular speciality in China related matters. He was recently made a director of Maxwell Chambers – Singapore’s newly opened arbitration centre. Though US trained, Palay has worked in commercial arbitration in Switzerland for 30 years.

Who uses it?

Costa Rica is using Sidley Austin on three ICSID cases covering Ponzi schemes, leatherback sea turtles and illegal orchard squatters.
The firm is also defending Turkey in a claim under the Energy Charter Treaty and Netherlands-Turkey bilateral investment treaty, and Peru in a couple of disputes relating to the energy and banking sectors.
On the claimant side, its lawyers are bringing a claim for a Dutch investor in the Slovak health insurance market under UNCITRAL rules.
At the WTO, the firm is representing Brazil, Japan and China, and an Airbus commercial stakeholder taking the European side in the pan-Atlantic subsidies dispute.
Clients using the firm for contractual arbitration include Rusal, Nanya Technology Corporation (part of Taiwan’s Formosa Plastics group), Al Quraishi Marketing and Tengen Metals Congo. Many of those arrived with Marc Palay.
Philip Morris recently sought the practice out to bring an ICSID claim against Uruguay over the country’s anti-tobacco legislation.
In Asia, Ing Loong Yang was also counsel to Insigma Technology, a Chinese company, in its patent licensing dispute with French group Alstom. That case attracted publicity because of a SIAC’s tribunal willingness to let the case proceed under ICC rules.

Big wins

The firm won $185 million for Vivendi in an ICSID case against Argentina.

Recent events

Steven Pitt, in the London office, was promoted to partner in 2010.
The firm also saw the Vivendi award survive the annulment process – the ad hoc committee refused to overturn an award in the French company’s favour, even as it controversially criticised Swiss arbitrator Gabrielle Kaufmann-Kohler. (It’s the second time Sidley Austin has been to annulment proceedings in the case: the first time, it got an award in favour of Argentina annulled.)
The firm also heard that it had won one of its Costa Rica ICSID cases. The tribunal denied jurisdiction of a claim by 135 Canadians who invested in what turned out to be a Ponzi scheme. The claimants had argued that Costa Rica had failed to diligently investigate and shut down the scheme. The tribunal held the investments were not in accordance with Costa Rican law.
In the courts, Sidley successfully enforced awards worth US$100 million against a Yemeni company. It also coordinated a Chinese DIY chain’s campaign to resist enforcement of an award over a failed joint venture agreement. Enforcement was successfully resisted in several jurisdictions, including before the Supreme People’s Court in Beijing.
Meanwhile Stanimir Alexandrov was one of the arbitrators in Alpha Projecktholding v Ukraine who produced an award that has attracted much interest – because it apparently dilutes the Salini test and widens the definition of an investor under the ICSID Convention.

Client comment

An in-house counsel used a team led by Marc Palay for an important set of cases and was suitably impressed. “They are organised, efficient, tightly coordinated, highly responsive and good value for money,” the client says. “Palay did the vast majority of the cross-examinations very ably. It was the American approach versus the English approach – simple and direct versus formal and insinuating.”
A government lawyer who used the firm for a treaty claim that could have entailed damages stretching to nine figures, says: “Sidley impressed me with their professionalism and organisation. The lawyers had done their homework thoroughly and were frank in pointing out the parts of our case that might be weak. They left no page unturned however remote the relevance might be and their strategy and presentation was clear.” Failure in that case raised the prospect of similar claims against the state, he said. “With stakes that high, we naturally wanted to have the best.”

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