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GAR 100 - 5th Edition

Arnold & Porter

05 March 2012

The practice, famous for successes on behalf of investors and states alike, was retained by Venezuela for a new ICSID case in 2011

People in Who’s Who:
2
Pending cases as counsel:
24
Value of pending counsel work:
US$12.5 billion
Treaty cases:
17
Current arbitrator appointments:
17 (of which 11are as sole or chair)
No. of lawyers sitting as arbitrator:
3

Arnold & Porter’s international arbitration practice grew from its long-standing reputation in trade and sovereign debt, which led it to represent several states in the public international law arena in the 1980s. Initially the work was led by the late Bill Rogers, a former undersecretary of state in the Ford administration, then by Eli Whitney Debevoise and after him Jean Engelmayer Kalicki. In 2007, the practice was boosted by a team of eight lawyers from Winston & Strawn, specialising in Latin American investment arbitration of whom Paolo Di Rosa was the best known. Since then the group has made additional senior lateral hires, including former members of the US Department of State. In 2010, Whitney Debevoise rejoined after a three years as US executive director at the World Bank.

Network

Although the firm has European offices, it’s fair to say that the arbitration practice’s centre of gravity remains Washington, DC. That said, it’s far from a US-centric group. In DC, several of the partners are native Spanish speakers. In addition, a new of counsel hire in San Francisco, Maria Chedid, has added fluent Arabic along with an expertise in IP disputes. In 2010, a fluent Russian speaker Dmitri Evseev (another lateral hire from Winston) moved from DC to London.

Who uses it?

The arbitration group is popular with Latin American governments for investor-state work (Chile, Panama, Venezuela, Guatemala and the Dominican Republic are all using it) and nowadays with governments more broadly, including Hungary, Sri Lanka and South Korea. Unlike some firms that have made their name in investor-state field, however, Arnold & Porter is happy to work both sides of the street. Investors using it include France’s EDF in an ICSID claim against Argentina, and Greek and Austrian claimants in an ICSID case against Serbia.

Track record

The practice has had good couple of years when it comes to visible results.

One occurred in 2010 when it scored a notable victory for Hungary. Jean Kalicki defended the state against two claims brought under the Energy Charter Treaty by power providers AES and Electrabel over changes to its regulatory regime. The case raised a hot topic in international arbitration: the relationship between EU competition law and investment protection. It was the first investment arbitration to feature an amicus curiae submission by the European Commission. The tribunal found that Hungary did not breach the treaty when it imposed maximum price caps on electricity.

Around the same time, partner David Orta helped Panama prevail in the state’s first-ever ICSID case: a US$62 million claim by US shareholders in a Panamanian energy company over taxation policy. The tribunal ruled that a tax exclusion clause in the treaty limited its jurisdiction to expropriation claims and awarded the state more than US$4 million in costs.

2010 also saw Paolo Di Rosa and Gaela Gehring Flores draw a line under a case against Chile. In 2007 they helped the Latin American state see off a US$22 million claim by a Spanish fishing company on jurisdictional grounds. An annulment committee upheld the decision in late 2010, awarding Chile full costs.

AbitibiBowater, the forestry company, also used the firm in a NAFTA claim against Canada over an expropriation by one of its provinces. The case settled with the state agreeing to pay US$130 million.

Recent events

2011 saw Venezuela retain the practice for a new ICSID case (brought by Panamanian and Dutch Antilles mining investors). The state isn’t a new client for the firm – it previously helped see off an ICSID claim by Dutch investor I&I Beheer in 2005 – to date the only ICSID case against the Chávez government to be dismissed in its entirety. The firm is still handling spillover litigation from the Beheer case concerning foreign sovereign immunity issues, which is currently before the US Supreme Court.

Members of the firm also took part in the merits hearings in the Railroad Development Corporation v Guatemala case, which were broadcast “live” at ICSID in November. In another case, the firm helped EDF rebuff a petition for discovery under section 1782 of the United States Code. The plaintiffs, Thai and Laotian companies that had won a US$57 million award against Laos, wanted EDF’s US subsidiary to disclose evidence of assets owned by Laos.

Jean Kalicki is now sitting as an arbitrator at ICSID in addition to the ICDR. She recently survived an attempt to dislodge her from a tribunal hearing an Australian mining company’s claim against Gambia. Meanwhile counsel Patricio Grané, a Costa Rican-Argentine who joined from Sidley Austin in 2009, was nominated by Costa Rica to the roster of arbitrators for state-to-state disputes under DR-CAFTA.

Paolo Di Rosa says a highlight of his year was acting as lead counsel to Colombia in a US$17 billion lawsuit brought by a US salvage company over the rights to the wreckage of an 18th-century Spanish galleon. A federal court in DC threw the case out in October.

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