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GAR 100 - 5th Edition

McMillan

05 March 2012

Mining and airline arbitrations have kept this Canadian team busy of late.

Pending cases as counsel:
10
Value of pending counsel work:
US$300 million
Treaty cases:
2

McMillan’s international arbitration practice developed around leading arbitrator J William Rowley QC, who has retired from the partnership but continues to be “on call” as chairman emeritus and special counsel.

Among the senior lawyers who focus on counsel work is partner Robert Wisner, who was persuaded to return to the firm in 2007 after many years at investment arbitration boutique Appleton & Associates in Washington, DC. Wisner leads the cross-border disputes and investment law work from the firm’s Toronto office with partners Markus Koehnen and Brad Hanna.

Following McMillan’s merger with mining firm Lang Michener at the start of 2011, the practice has around 10 lawyers working on domestic and international arbitration in total.

Meanwhile, Rowley, who is chairman of GAR’s editorial board, often affords the firm’s associates the opportunity to serve as tribunal secretaries in disputes he is hearing.

Who uses it?

The arbitration group has regularly acted for Canadian and international mining companies in investment disputes. Examples include a US$100 million French-language ICC arbitration in Paris against a West African state entity and investment treaty claims against Barbados and Ecuador. In addition, Montreal partner Éric Vallières frequently acts in airline industry arbitrations on behalf of the International Air Transport Association (IATA).

Track record

There isn’t much on the record about the firm’s work, at present. The firm says that’s a testament to its success in getting disputes thrown out early or settled. In one recent example, Wisner had an ICC claim over the sale and purchase of avionics equipment dismissed at the jurisdictional stage.

Recent events

Through the merger with Lang Michener, the practice gained two lawyers in Toronto: litigation partner Nairn Waterman, who has experience of commercial arbitration; and counsel Cyndee Todgham Cherniak, who has worked on several NAFTA cases.

Wisner and Koehnen have published a chapter on destroying the credibility of witnesses in Take the Witness: Cross Examination in International Arbitration, edited by Lawrence Newman of Baker & McKenzie and Ben Sheppard, director of the AA White Dispute Resolution Center at the University of Houston.

2011 saw the firm instructed in several new ICC matters, including a US$16 million claim concerning a joint venture for the supply of automotive parts that is being led by Hanna. There were also two new instructions from IATA in arbitrations in Paris and Geneva, and Waterman acted for a consortium of insurers in an ad hoc arbitration concerning satellite communications.

Meanwhile, Koehnen and Wisner both have matters underway in the Ontario courts – Koehnen seeking recognition and enforcement of an ICDR award for a film production company; Wisner resisting enforcement of an UNCITRAL award for a telecoms service provider.

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