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GAR 100 - 5th Edition

Crowell & Moring

05 March 2012

The firm had a strong year in 2011 but lost four partners in early 2012

People in Who’s Who:
4
Pending cases as counsel:
23
Value of pending counsel work:
US$4 billion
Treaty cases:
13
Current arbitrator appointments:
5 (of which 2 are as sole or chair)
No. of lawyers sitting as arbitrator:
2

When a US hotel operator dropped its counsel in the middle of a US$90 million ICC arbitration, it asked Crowell & Moring to take over ahead of an imminent merits hearing. The firm won the dismissal of all claims against its client, along with US$5 million in unpaid hotel fees and the option to recover up to US$20 million more.

It’s not the first time this international arbitration team has been asked to take over a case midway. Oil company Caratube interviewed nine other law firms before asking Crowell & Moring to take over its ICSID claim against Kazakhstan in 2010 from Allen & Overy.

Crowell & Moring’s current international arbitration team began as a Washington, DC, litigation practice that for various reasons found itself working on a number of major international arbitrations. When an opportunity arose in 2007 to add a ready-made team from Fulbright & Jaworski and Freshfields Bruckhaus Deringer with deep international arbitration experience, the firm took it – creating in one stroke a practice with the sort of cosmopolitan range of languages and legal cultures that this field requires. Crowell & Moring is one of the few places in Washington, DC, that one can find arbitration specialists fluent in Portuguese, Chinese, Malay, Hindi, Urdu and Arabic.

Since then, the combined group has rapidly made a name for itself on various high-profile ICSID cases, and has made some highprofile lateral hires.

The practice is chaired by Arif Ali (ex-Fulbright & Jaworski and Freshfields), who was born in Bangladesh and educated in the UK and the US. His career includes stints at the UN Compensation Commission and the World Intellectual Property Organization. He’s also a professor at Georgetown University in DC.

It also home to Baiju Vasani (one of GAR’s “45 under 45” for 2011), who joined with Ali and was recently promoted to partner; and to Theodore Posner, a former director for international trade and investment at the US National Security Council.

Network

The team is concentrated in Washington, DC, but several partners spend part of their time working from London. The New York office is also active.

Crowell & Moring has 11 offices in all – including an affiliate office in Cairo – through a tie-up with Hegazy & Associates (the local firm’s managing partner, Walid Hegazy, is ex-Freshfields, with 15 years’ experience of Middle East-related arbitration). The firm also formed an alliance with a Saudi Arabian firm, giving it offices in Riyadh and Jeddah.

Who uses it?

Adel A Hamadi Al Tamimi, member of a prominent family in the Gulf region, is a client. He’s using the firm for an ICSID claim against Oman.

Dutch real estate developer Tulip is another client (it is using the firm on a recently begun ICSID case against Turkey), as is resort operator H&H Enterprises (it has a claim against Egypt).

It is also working for members of the Hourani family (who own the Caratube business) in a feud being played out over multiple fronts with the Kazakh government. That work encompasses an ICSID claim, an UNCITRAL claim by an affiliated poultry company, and a lawsuit in Washington, DC, against a US businessman whom, it is alleged, orchestrated a plan to help President Nazarbayev seize the investments of his political opponents.

It is also popular with mining companies – such as Glamis Gold (a NAFTA claim against the US), Pacific Rim (a controversial DR-CAFTA case against El Salvador) and Khan Resources (an Energy Charter Treaty claim against Mongolia concerning a uranium mine).

Recently it’s become the standing adviser to South Korea on treaty matters after winning a beauty parade featuring five other firms. It’s also working on treaty matters for Uganda.

Track record

Peculiarly, one of Crowell & Moring’s arbitration highlights is a case about adult entertainment. It helped Florida’s ICM Registry win an arbitration against California internet regulator ICANN over the launch of the “.xxx” top-level domain name. An ad hoc tribunal held that ICANN had breached its own rules, as well as international law, in the way it handled ICM Registry’s application.

Other successes include winning US$18 million for Duke Energy in a claim against Peru; the notable fact there is that a parallel case about the same facts, run by a different legal team, all but fell flat. And the team helped a major intergovernmental organisation to beat a US$20 million UNCITRAL claim that sprang from corruption allegations.

The team has also now been appointed as standing advisers to South Korea in all its treaty dispute issues, following a contest with five other law firms. Uganda is also seeking its advice on arbitration matters.

It hasn’t all been good news over the years though. A high-value claim against Turkey did not end especially well recently.

Recent events

As GAR 100 was going to press, news broke that practice chair Arif Ali is moving to Weil Gotshal & Manges in DC in February 2012, along with three other partners: Alexandre de Gramont and Theodore Posner, also in DC, and US-Egyptian national Samaa Haridi in New York.

Meanwhile Baiju Vasani, who was promoted a year ago, was named in GAR’s “45 under 45” as one of the leading younger practitioners in the field. In an interview he said, “When working on these cases I often recall the fact that my own family had all their worldly possessions expropriated by President Idi Amin in the 1970s with no recourse to any dispute resolution forum.”

As mentioned above, the firm’s now working for limestone investor Adel A Hamadi Al Tamimi in the first ever investor-state claim under the US-Oman free trade agreement. Adel Hamadi Al Tamimi is the brother of well-known UAE arbitration practitioner Essam Al Tamimi (who is not involved in the case).

In March 2011, Ali and Vasani saw the US$18 million award they won a few years back in favour of Duke Energy survive an annulment request. The original case concerned a tax stability agreement.

But Crowell & Moring’s year was inevitably overshadowed by a resounding defeat for its client Libananco Holdings in a US$10 billion claim against Turkey under the Energy Charter Treaty. In September 2011, a tribunal ruled the claimant had failed to prove it had acquired shares in two utilities before their concession were terminated. The arbitrators awarded Turkey US$15 million in costs. A team from Freshfields represented the state. The case – one of a cluster of ICSID claims and related litigation arising from Turkey’s feud with the Uzan family – also has the distinction of being the most expensive ICSID proceeding in history: the combined fees and costs of both sides were US$60 million, without the case even reaching the merits stage.

The result, though, has not deterred Crowell from taking on Turkey in other matters. In October 2011, the firm filed a new expropriation claim against the state on behalf of Tulip Real Estate and Development of the Netherlands.

On the enforcement front, the firm has been helping Blue Ridge Investments (the fund that acquired the rights to a US$133 million ICSID award against Argentina from CMS Gas) pursue ways to make the state pay out. More eclectically, the team reports advising Italian vintner Luigi Bosca in an investment dispute with Lithuania.

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