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GAR 100 - 5th Edition

Appleton & Associates

05 March 2012

This arbitration boutique continues to draw in NAFTA cases

Appleton & Associates was one of the first arbitration boutiques known to GAR. It was established in 1994, in Toronto and Washington, DC, to represent claimants in investor-state arbitration.

Interviewed for a previous edition of the GAR 100, Barry Appleton said his firm is unique in focusing “so exclusively” on investor work. Although it was more visible a few years ago, the team remains proud of the cases it has brought in.

The firm continues to be active in NAFTA arbitration. Two recent clients that have sought it out are Mesa Power Group and St Marys Votorantim Cement North America in claims against Canada concerning renewable energy and quarry licences, respectively.

In 2010, the firm also represented US forestry company Merrill & Ring in its unsuccessful claim against Canada over regulations governing log exports.

More recently, the firm received a disappointing result for US insurer Continental Casualty in a case challenging measures taken by Argentina during its 2001 to 2002 financial crisis. An ICSID tribunal – surprisingly, some felt – upheld the state’s “necessity defence” in part, awarding the company less than US$3 million of the US$69 million in damages it asked for. Appleton reacted that the ruling “is at odds with the vast majority of other decisions in this important area of international law.” However, the award has survived an annulment attempt. Unusually, both sides sought to have elements annulled.

Appleton has said he still regards investment arbitration as a valuable “depoliticised mechanism”. He also said that working on the claimant side is “more challenging [...] as the burden of proof is upon them.”

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