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GAR 100 - 5th Edition

Latham & Watkins

05 March 2012

Though it lost two key players in London, 2011 was a good year when it comes to results and fresh instructions.

Pending cases as counsel:
47
Value of pending counsel work:
US$11 billion
Treaty cases:
10
Current arbitrator appointments:
3 (of which 0 are as sole or chair)
No. of lawyers sitting as arbitrator:
1

Latham & Watkins’ international arbitration group started long ago in New York (co-headed by Selvyn Seidel, who now runs a third-party funder). It began to take on its modern form in the early 2000s with lateral hires and mergers in Germany and Paris.

However, it was in London in the mid-2000s where the team’s reputation really soared, with the arrival of Philip Clifford (from Clifford Chance) and Robert Volterra from Herbert Smith as partners. They linked up with Sebastian Seelmann-Eggebert in Hamburg to develop a significant practice with a particular name for PIL and ICSID work.

During the mid-2000s, one of the group’s current co-chairs – Mark Beckett – was living and working from Paris. Though now back in the US, he remains high up in the ICC’s US member organisation.

Since then, the group has significantly expanded in London at the associate level and built up a presence in Spain, hiring partner Antonio Morales from Cuatrecasas in 2007.

It has also gained a footprint in Asia: Simon Powell, formerly of Jones Day in Hong Kong, and Daiske Yoshida in Tokyo.

Volterra has now left with the well-regarded younger partner Stephen Fietta to set up a public international law boutique. In the wake of their departure, the Latham & Watkins group is now chaired by Beckett and Seelmann-Eggebert. Volterra Fietta (the new boutique) and Latham & Watkins are now working together on a number of cases.

Network

The international arbitration team comprises around 40 lawyers across the US (New York and San Francisco), Europe (Frankfurt, Hamburg, London, Madrid and Paris) and Asia (Hong Kong and Tokyo).

Who uses it?

The firm has defended Croatia, Macedonia, Ukraine and Azerbaijan in treaty cases. Corporate clients it is known to have worked for include Koch Industries, Indorama, and Turkish construction companies ATA and Karmer (all on ICSID matters).

The team also regularly advises energy companies on international sanctions issues – most recently those affecting Libya.

Track record

In 2010, the team helped Croatia defeat an €80 million claim by an Austrian casino operator, over investments dating back to the days of the former Yugoslavia. An UNCITRAL panel threw out all the claims after finding that the dispute had already been amply adjudicated in the Croatian courts.

Meanwhile, Philip Clifford in London and Rachel Thorn in Paris recorded a notable success on behalf of a Spanish-French technology company in an ICC case. Their client brought a claim for fraudulent inducement and misrepresentation against a seller after discovering widespread accounting fraud at a business they had just bought. The ICC panel upheld the claim and awarded €25 million in damages. Latham & Watkins backed up the victory in the English courts, successfully defending a challenge to the award (see the anonymised 2010 High Court judgment, B v A).

Recent events

The significant event change was the departure of Robert Volterra and Stephen Fietta from the London office to set up a rival boutique, taking associate Joanna Dingwall with them. The firm continues to have a strong London presence in the form of Philip Clifford, recently promoted partner Oliver Browne and senior associate Charles Claypoole. Claypoole has worked broadly in PIL forums, including the ICJ, Iran-US Claims Tribunal and ICSID.

In mid-2011, the New York office also said goodbye to Singaporean practitioner Dan Tan, who has set up his own boutique international arbitration and litigation firm – also featured in this year’s GAR 100.

Oliver Browne was promoted to partner in London in late 2011, as was Christoph Baus in Hamburg.

In Milan, the firm absorbed disputes boutique Degli Occhi e Associati, adding one of counsel, one counsel and an associate with commercial litigation and arbitration experience. They’re all former members of another GAR 100 firm, Bonelli Erede Pappalardo Studio Legale.

In Paris, partner Rachel Thorn was a runner-up in GAR’s “45 under 45”.

Departures notwithstanding, business lately has been good. In March 2011, an ICSID tribunal found for Latham’s client, Ukraine, in a dispute with German petrochemicals investor GEA. The tribunal dismissed all claims by GEA; in a much remarked-upon decision, the panel, chaired by Albert Jan van den Berg, said neither an ICC award previously obtained by GEA nor a settlement agreement could qualify as an “investment” for the purposes of a treaty claim. The panel also awarded Ukraine full costs of US$1.5 million.

The firm also helped Macedonia negotiate a settlement with Austrian energy services group EVN that had threatened to play out at ICSID and the ICC. The terms weren’t disclosed but were “favourable to Latham’s client in a manner that preserves the parties’ long-term relationship”, the firm says.

The work for Turkish dam builder ATA in its acrimonious dispute with Jordan ended on a less positive note: an ICSID ad hoc committee ordered ATA to pay US$80,000 towards the state’s legal costs after finding it had blocked proposals that would have kept down the costs of an aborted annulment proceeding.

On the plus side, the firm picked up new instructions from investors seeking to bring claims against Venezuela. In one case, the client is Koch Industries, in a claim over an expropriated fertiliser plant. Another is US bottle maker Owens Illinois. Former colleagues at Volterra Fietta are acting as co-counsel in both cases.

The team has also been instructed in one of the first arbitrations flow from the Arab Spring – working for a UK subsidiary of Singapore’s Indorama to bring an ICSID claim against Egypt. The case is thought to concern the renationalisation of a textile factory in the wake of the Arab Spring.

Client comment

Wolfgang Schmid, in-house counsel at Freudenberg Worldwide, used the firm for a case with elements in five countries, heard in three languages. The team he worked with were “outstanding”, he said, both analytically and on the law, without shutting his view out: “I used them for 1,600 hours and was extremely satisfied. They were very efficient. I would definitely recommend them – especially the excellent team headed by Mark Beckett.”

Stephen Butler, of engineering firm Parsons Brinckerhoff, used a team led by Philip Clifford on a case he ranked as 10 out of 10 on the scale of importance. He said his team was “always ahead of the curve” on the case, conducted all of its own cross-examinations and was simply very effective. “The opposing counsel from the US was good, but Philip was better.”

Peter Schuchardt, of OAO Telecominvest, used Latham & Watkins on a matter where other parties were in a similar position, allowing him scope to compare the value for money received. The team at Latham & Watkins advised him to forgo a strategy being recommended to a co-party by another law firm. Having accepted that advice, he avoided “being caught up in very difficult issues” that apparently led the other party into administration.

During the case, he was able to observe lawyers from a range of distinguished firms in action. “In efficiency, strategy and addressing complex issues of law, Latham & Watkins was clearly ahead of the pack,” Schuchardt said. In his opinion he paid less overall than others “and got more in relative terms.”

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