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GAR 100 - 5th Edition

Sidley Austin

05 March 2012

Daniel Price may have gone solo, but the practice looks more balanced than ever.

People in Who’s Who:
2
Pending cases as counsel:
81
Value of pending counsel work:
US$58 billion (includes some WTO work)
Treaty cases:
18
Current arbitrator appointments:
25 (of which 12 are as sole or chair)
No. of lawyers sitting as arbitrator:
8

Sidley Austin was one of the first firms to handle treaty arbitrations in the 1990s as a complement to its leading trade-law practice.

The core of the current international arbitration practice can be traced back to 2002 when the firm brought in Daniel Price and 30 other lawyers from a Washington, DC and Geneva trade-law boutique. Price – who left the firm to set up as an independent arbitrator and business consultant last year – was one of the first US attorneys to call for companies to take commercial advantage of the growing network of international treaties. His arrival kicked both arbitration practice and WTO disputes practices into high gear and the firm continues to be in high demand for treaty work (with Stanimir Alexandrov, a former vice minister of foreign affairs, as a well-known arbitrator).

In 2008, the collapse of Heller Ehrman gave the firm a commercial arbitration practice in Asia, where its leading name is Ing Loong Yang, a sought-after counsel and arbitrator in Chinese and English language proceedings in Beijing, Hong Kong and Singapore. More recently, it has added partners in Geneva. US-trained Marc Palay, the more senior of the arrivals, joined from Winston & Strawn, while David Roney was a partner at Schellenberg Wittmer. The arrivals focus on commercial arbitration, giving the practice a greater appearance of balance.

The new Geneva group arrived with a portfolio of pending arbitrations, including some high profile matters involving CIS states. The London practice, headed by Dorothy Cory-Wright, is also strong in commercial arbitration.

Network

The firm’s international arbitration hubs are Washington, DC, Geneva, Hong Kong, Singapore and, to a slightly lesser degree, London.

Who uses it?

The firm represented French water concessionaire Vivendi, on one of the longest investor-state disputes on record at ICSID, against Argentina (the case lasted from 1996 to 2010); and a Dutch investor in an UNCITRAL claim against Slovakia relating to the health insurance market.

On the state side, Costa Rica has used Sidley Austin on three ICSID cases (covering Ponzi schemes, leatherback sea turtles and illegal orchard squatters). The firm is also defending Turkey against claims under the Energy Charter Treaty and Netherlands-Turkey bilateral investment treaty, and Peru in a couple of disputes relating to the energy and banking sectors.

The firm’s commercial arbitration portfolio includes briefs for several large affiliates of Rusal, a London-based investment fund, a US hedge fund, a Saudi Arabian beverage distributor, a world leader in the semiconductor manufacturing sector and an African minerals company. The firm is also advising US tobacco group Philip Morris International in its controversial ICSID claim against Uruguay concerning tobacco packaging legislation (Lalive is acting as co-counsel).

In Asia, it has had instructions from Proton Holdings Berhad, a Japanese investment fund, a Taiwanese tool manufacturer and China-based private equity funds. Stanimir Alexandrov has also advised the Korean Ministry of Justice on investment treaty negotiations and dealing with investment claims.

At the WTO, the firm has represented Brazil, Japan and China, and an Airbus commercial stakeholder taking the European side in the pan-Atlantic subsidies dispute.

Track record

The firm won nearly US$200 million for Vivendi in its ICSID case against Argentina under the France-Argentina bilateral investment treaty – with the award later upheld by an annulment committee.

It has also enjoyed an ICSID victory for Costa Rica (in the Ponzi scheme case).

A recent victory, in July 2011, was an award dismissing a US$112 million claim against Rusal affiliate Alumina a & Bauxite Company in SCC proceedings. The case is one of a group of arbitrations relating to an aluminium plant in Tajikistan.

It also successfully resisted the enforcement of an award obtained by a French DIY chain store against a Chinese chain in a number of jurisdictions, including before the Supreme People’s Court in Beijing.

Recent events

After returning from service with the Bush administration, Daniel Price left again in July 2011 to become an independent arbitrator and set up a business consultancy with Bush’s former chief of staff, Johann Bullen. He continues to partner with Sidley’s international arbitration practice as co-counsel on cases.

Marc Palay joined in late 2010 and David Roney in early 2011. In July, the firm added a second lawyer from Schellenberg Wittmer in Geneva: Dorothee Schramm.

Ing Loong Yang was appointed as a director of Maxwell Chambers in late 2010. He has published a book in Chinese on conducting international arbitrations in Hong Kong and Singapore.

Roney continues to be involved with the Foundation for International Arbitration Advocacy and is the co-chair of an ICC task force on enforcing awards under the New York Convention.

The firm says that it has recently acted on arbitrations involving issues of third-party participation in arbitration proceedings, in particular making creative use of article 4(2) of the Swiss Rules to bring in third parties even absent the express consent of all parties involved.

It fared less well, however, in its recent claim against Slovakia on behalf of Dutch health insurance investor HICEE. In October 2011,

a majority of the tribunal tossed the case out at the jurisdictional stage, holding that the claimant’s assets weren’t covered by the Netherlands-Czechoslovakia BIT because they were held through a Slovak holding company.

Client comment

An in-house counsel used a team led by Marc Palay for an important set of cases and was suitably impressed. “They are organised, efficient, tightly coordinated, highly responsive and good value for money,” the client says. “Palay did the vast majority of the cross-examinations very ably. It was the American approach versus the English approach – simple and direct versus formal and insinuating.”

A government lawyer, who used the firm for a treaty claim that could have entailed damages stretching to nine figures, says: “Sidley impressed me with their professionalism and organisation. The lawyers had done their homework thoroughly and were frank in pointing out the parts of our case that might be weak. They left no page unturned, however remote the relevance might be, and their strategy and presentation was clear.” Failure in that case raised the prospect of similar claims against the state, he said. “With stakes that high, we naturally wanted to have the best.”

Insight

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