Recently, a very well-known global corporation “woke up to the fact it was in a deep hole” in a particular international arbitration, according to someone with direct knowledge of the position.
- People in Who’s Who:
- Pending cases as counsel:
- 47* excludes domestic arbitrations (100 cases in Germany and 30 in US)
- Value of pending counsel work:
- US$77 billion
- Treaty cases:
- Current arbitrator appointments:
- 31 (of which 17 are as sole or chair)
- No. of lawyers sitting as arbitrator:
An ICC panel had decided against the company – all that remained was: how much did it owe? The opposition was suddenly talking about US$100 million. More in hope than expectation, the global corporation decided it would be worthwhile asking another firm to step in – perhaps something could be salvaged. It went to WilmerHale, which it had used on a larger arbitration. Some months – and many memorials – later, the ICC’s governing body replaced the president of the tribunal. Although the new panel didn’t agree to restart the case from scratch, it did agree to accept additional presentations on points that the client felt had been overlooked. The client was by all accounts delighted at being, to some extent, back in the game.
Asked how often the ICC Court agrees to replace the president of a tribunal so late in a case, a leading authority on ICC practice told a reporter “I’ve never heard of it before.”
Wilmer Cutler & Pickering – one half of WilmerHale – has had a reputation for representing clients in exotic, difficult or international disputes stretching back decades. It was prominent in the US Army-McCarthy hearings and the legal defence of civil rights. Its emergence in international arbitration owes much to name partner Lloyd Cutler. In the 1980s, Cutler prompted the firm to represent Greenpeace in arbitration against France over the Rainbow Warrior. A decade later, he spurred it to represent Eritrea at the Permanent Court of Arbitration in a territorial dispute with Yemen.
Why were those two matters so important? The cases were led by Gary Born, then a young rising star in the firm. According to several people familiar with the practice group’s development, the experience helped to nudge Born into making a choice between his hitherto equal areas of interest – international arbitration and international commercial litigation. (Born continues to maintain popular treatises and casebooks in both areas of law.)
After the Eritrea case, Born – who clerked for Justice William H Rehnquist at the Supreme Court and was raised as a US ex-pat in Germany – began to angle himself more towards international arbitration. He started to work for Deutsche Telekom on what reports paint as a monumental ICC arbitration, and with a leading oil business on another substantial matter. Those cases created the conditions for growth that’s led to a practice with as many as eight partners devoted to it at times.
The group, which initially operated out of London, prides itself on both its size and cosmopolitan nature – it estimates it’s worked in 40 jurisdictions – and includes, as far as GAR is aware, the first civil-law trained partner resident in London full-time (Franz Schwarz). It is also proud of a “completist” approach to advocacy and briefing – which it regards as a unique house-style – and its track record. Until quite recently, several of the junior partners were able to say that they’d never actually lost a case. Although success has made it harder to preserve a perfect win-loss record (your reputation as miracle workers results in more cases that are simply lost causes) the team remains very results-focused. They also maintain a prolific publishing output. Gary Born is the author of possibly the most useful treatise in print on the nuts and bolts of international arbitration, and the team as a whole devotes substantial man-hours to developing books.
The era of working from a single location – London – is now over. The mother practice has developed offshoots in the US as lawyers trained in London have gone home, and the positive experience means further expansion is under discussion for Europe and possibly even Asia. Some things remain as always, though. The London arbitration team continues to occupy a separate office from the rest of the firm, giving the impression at times of a firm within a firm.
WilmerHale is the product of a merger in 2004 between Hale & Dorr in Boston, a firm with heritage in life sciences, and Wilmer Cutler & Pickering, a regulatory, antitrust and trade powerhouse in Washington, DC. It was noted at the time that the merger partners shared a similar social conscience and placed great store on pro bono work. The firm has offices in London, Brussels, Oxford, Beijing, Berlin and Frankfurt (opened in 2008).
Who uses it?
It remains nigh impossible to obtain detailed information from the firm on its arbitration clients. It’s known that Deutsche Telekom is a regular client, as is Repsol. The firm has also recently represented the government of Southern Sudan.
Deutsche Telekom has reason to be very pleased with the work of WilmerHale, which allowed the German company to buy an eastern European player with excellent prospects in several markets at a rock-bottom price.
The saga, which has taken a further twist recently, began when Deutsche Telekom discovered a local partner had gone behind its back and sold a stake in a joint venture to a rival – Vivendi of France. The German company turned the tables, declaring the secret deal had triggered its own option to buy the whole venture, and duly exercised that option. WilmerHale lawyers conducted the arbitrations and later court work to enforce that contact term. In a succession of awards, the team obtained confirmation from arbitrators that Deutsche Telekom’s purchase of shares had stuck. They’ve since defended those awards in Poland, Austria and Switzerland, forcing Vivendi to pursue other avenues (representatives of Vivendi, meanwhile, were for some years referring to the state of affairs as “continuous robbery”). From Deutsche Telekom’s perspective, the upshot is full ownership of the Era brand, central Europe’s largest mobile operator.
It’s the second time that WilmerHale has helped Deutsche Telecom to get one over on a rival through arbitration. In the early 2000s, the unlucky opponent was France Télécom.
WilmerHale also helped to defend the boundaries of the Abyei region in Sudan, working for the Southern Sudanese government. The territory in question – which was delineated by a specially-appointed commission a few years ago – contained an oil-rich zone and tribal lands. Arbitrators at the Permanent Court of Arbitration in The Hague redrew the boundaries – ahead of the recent referendum. It was noted that several of WilmerHale’s arguments appeared in the final PCA award almost verbatim. Luka Biong Deng, minister for presidential affairs for the government of Southern Sudan, described the firm’s work as “extraordinary in every way”.
The practice now receives a top-rung finish in one guide to the arbitration teams in the UK, the culmination of several years of progressing up that list. At the pan-European level, another book rates the firm as in the second tier. Globally, it is picked for the third tier. In the US, the firm appears lower-mid-table (band four).
The global ranking ought arguably to be reconsidered. There seems little rationale for putting the practice below, for example, firms such as Allen & Overy, Clifford Chance and others when, on occasion, WilmerHale has replaced those practices on cases. If the issue is lack of investment treaty expertise, Born has sat as an arbitrator regularly in ICSID matters.
After many years in offices near Pall Mall, the London arbitration team in 2010 moved to new offices on Park Lane. Those offices were equipped with sole-occupation by an arbitration practice in mind. They feature hearing rooms, enhanced communications facilities and other arbitration friendly details that ought to be the envy of others.
On the personnel side, to improve the linkage between US and UK teams, two US-based partners started to split time with London (John Pierce from New York and John Trenor from DC). The team also promoted two associates to its counsel level and recruited an additional two lawyers from continental Europe for its associate ranks.
After the fanfare accompanying the launch of Gary Born’s new and improved treatise on commercial arbitration in 2009, the spotlight shifted to other members of the group in 2010. Franz Schwarz published his own treatise, A Commentary on International Arbitration in Austria. Steven Finizio and Duncan Speller meanwhile completed the manuscript for their Practical Guide to International Commercial Arbitration, which appears soon.
* excludes domestic arbitrations (100 cases in Germany and 30 in US)