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GAR 100 - 5th Edition

CMS network<sup>*</sup>

05 March 2012

CMS Bucharest scored a major ICSID win for Romania in 2011

People in Who’s Who:
2
Pending cases as counsel:
87
Value of pending counsel work:
US$20 billion
Treaty cases:
4
Current arbitrator appointments:
52 (of which 20 are as sole or chair)
No. of lawyers sitting as arbitrator:
14
*including CMS Hasche Sigle and CMS Cameron McKenna

Adopting a structure more commonly found in the accounting industry, the CMS network comprises nine law firms offering tax and legal advice focused on European jurisdictions.

A number of its members – particularly CMS Cameron McKenna in the UK and CMS Hasche Sigle in Germany – have busy arbitration practices, and the Polish and Swiss members are also often selected in legal guides for commercial disputes, including arbitration. Leading Belgian arbitrator Bernard Hanotiau is a former CMS Belgium lawyer.

In 2005, CMS made international arbitration one of its cross-organisation practice groups. That has enabled common training of associates to take place, along with an increase in secondments and more cases in which different offices collaborate.

Initially, Guy Pendell in London led the practice group; now it’s Torsten Lörcher in Cologne. CMS Germany is also home to Klaus Sachs, a leading arbitrator. (Besides his regular work, Sachs was one of four figures appointed to a special ICC panel to hear Formula One-related disputes).

In 2009, the firms collaborated to produce a 1,000-page guide to international commercial arbitration in 30 jurisdictions.

Network

The international arbitration group spans 16 jurisdictions, but the bulk of the team is in the UK, Germany and Switzerland. The wider network expanded to Brazil in 2010.

Who uses it?

It varies depending on which firm you look at, but most member firms are known locally for strengths in oil and gas, insurance and construction.

Some of the clients are quite high profile. CMS London is working for Shaher Abdulhak, one of Yemen’s wealthiest individuals, in a dispute with Norway’s DNO over oil production sharing arrangements in the autonomous Iraqi region of Kurdistan. A former US diplomat – Peter Galbraith – is a co-claimant in the case.

In Poland, CMS has been working for a former subsidiary of Belgian manufacturer Agfa-Gevaert in a series of linked cases. Cleary Gottlieb is defending the other side.

Track record

The gods of arbitration have been kind to the firm of late, providing some visible examples of success.

In Switzerland, CMS lawyers working for Atlético Madrid managed to overturn a Court of Arbitration for Sport award on the grounds of breach of public policy. It’s one of the first times that the Swiss Federal Tribunal has accepted such a challenge.

CMS also helped GALP, a Portuguese energy business, deflect a large claim relating to LNG from Nigeria.

In 2010, the Prague team helped the Czech ministry of finance prevail in a US$100 million arbitration with coal investor RPG Industries concerning a portfolio of 44,000 flats. The case dominated the national headlines and was the subject of several debates in the Czech parliament.

More recently, CMS Bucharest dealt a knockout blow to one of the biggest investment cases Romania has faced. See below.

Recent events

The energy disputes team in London promoted Jeremy Wilson to partner in 2011. He joined the firm in 2010 from Freshfields in Paris, where he worked on a major North African gas pricing dispute. His former colleague at Freshfields, William Lowery, has since followed him over to CMS as an associate. Wilson and partner Ben Holland authored a lengthy article on the use of “baseball” arbitration to resolve gas pricing disputes, which was published by GAR in August.

CMS Poland, however, suffered a blow in April 2011 with the departure of dispute resolution head Pawel Pietkiewicz and a team of 19 lawyers to White & Case in Warsaw. He’d been with CMS since 1999. Malgorzata Surdek, formerly the commercial and regulatory practice head, has filled his shoes and rebuilt the team – hiring new partners Joanna Mlot (ex-Clifford Chance) and Arkadiusz Korzeniewski (from White & Case), as well as an of counsel and four associates.

In Vienna, counsel Maria Theresa Trofaier left to become general counsel for a Ukranian company.

A team led by Gabriel Sidere in Bucharest saw out 2011 in style with an impressive win as co-counsel (with Winston & Strawn) for Romania.

Like most investment claims against Romania, the claim (by Greek national Spyridon Roussalis) arose from a privatisation in the 1990s – in this case, a frozen-food warehousing business. Roussalis demanded US$140 million after the state had pursued him for alleged fraud and tax liabilities. The ICSID tribunal tossed his case out and awarded the state more than US$8 million in fees and costs. Serendipitously, news of the victory arrived a day before CMS hosted a seminar in Bucharest on ways to protect foreign investment in central and eastern Europe.

The construction arbitration team in London had a busy year, representing clients in ICC cases concerning infrastructure, energy and utilities projects in Qatar (a dispute worth US$400 million), Egypt, Mozambique, Malawi and Senegal. The Mozambique case had a hearing in April before a tribunal in Copenhagen. The team also reports recent instructions for two multimillion-dollar cases in Libya.

The London office also secured a partial award on damages in the Spring on behalf of Shaher Abdulhak in his arbitration with DNO over Iraqi oil rights. The tribunal already found for their client on liability in a 2010 decision.

In another matter, a Nigerian investment company recently tapped the firm for an ICC arbitration against a West African government concerning oil exploration rights worth more than US$1.5 billion.

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