In 2011, the firm picked up new instructions from Turkmenistan and Uganda, and helped Venezuela and Kazakhstan settle some high-value claims
- People in Who’s Who:
- Pending cases as counsel:
- Value of pending counsel work:
- US$100 billion*
- Treaty cases:
- Current arbitrator appointments:
- 5 (of which 1 are as sole or chair)
- No. of lawyers sitting as arbitrator:
- 4 *includes ConocoPhillips v Venezuela
Curtis Mallet-Prevost Colt & Mosle has made a name for itself in recent times as a knight in shining armour for states facing serious claims under investment treaties.
That’s in part down to a deliberate policy of representing only sovereigns in such claims, never investors. According to the international arbitration group co-chair, George Kahale III, it’s not feasible for a single arbitration group to represent both claimants and states in similar proceedings because of the recurring legal issues. He thinks that governments now believe this too.
The growth of Curtis Mallet-Prevost’s practice suggests he’s right: having made its name by winning the bulk of the defence work for Venezuela at ICSID (a country with whom the firm has had a long-standing relationship), the firm has added Algeria, Kazakhstan, Turkmenistan and Uganda as arbitration clients.
Kahale, who’s also the firm’s chairman and former managing partner, began as a transactional attorney. A US publication dubbed him “the Oil Baron” in 2008 for his work on behalf of state oil companies such as Kazakhstan’s KazMunayGas.
Although strongly identified with BIT work, the firm is present in Paris too, where the other co-chair, Peter Wolrich, lives and works. Wolrich has strong links with the ICC. He has been chair of the ICC commission on arbitration since 2002 and oversaw the latest revisions to the ICC arbitration rules.
In the younger tier, names to know are Miriam Harwood in the New York office, Gabriela Alvarez-Avila in Mexico City and Claudia Frutos-Peterson in DC. The latter two are former ICSID counsel.
As well as the US and various major European cities, the firm is present in Almaty and Astana (Kazakhstan), Ashgebat (Turkmenistan), as well as Buenos Aires. It also has a small but well-regarded office in Mexico City.
Who uses it?
States, states and more states. The firm is representing Venezuela in around 12 cases and Turkmenistan in a further eight, as well as defending Algeria and its government-owned oil company, Sonatrach, in matters worth several billion. Its most recent client is the government of Uganda, which has retained it for an UNCITRAL dispute with Canada’s Heritage Oil over capital gains tax.
The firm also represents state entities such as PDVSA of Venezuela, Mexico’s Pemex, National Oil Corporation of Libya, Kazakhstan’s KazMunayGas and the Nigerian National Petroleum Company.
Although it’s early days in many of the Venezuela cases, the firm has scored some notable results – most recently in April 2011, when it persuaded an ICSID tribunal to throw out a claim by US telecoms investor Brandes at the jurisdictional stage.
The panel held that an ambiguous provision in Venezuela’s 1999 investment law couldn’t be read as a free-standing consent to ICSID jurisdiction. The Curtis team had already persuaded tribunals in the Mobil and Cemex cases on the same point. (Those cases were allowed to proceed on other grounds, although Cemex has since settled.)
It’s also proved adept at significantly lowering the amount of money at stake in other claims. In early 2012, an ICC tribunal awarded ExxonMobil subsidiary Mobil Cerro Negro US$908 million in a claim against PDVSA – a far cry from the US$12 billion it initially asked for. PDVSA says that, after deductions, the final pay-out will be more like US$250 million. In Mobil’s parallel ICSID case, Curtis also persuaded the tribunal to exclude a sizeable chunk of the US$10 billion claim that related to events pre-dating a corporate restructuring.
The firm has also enjoyed success before US and UK courts – it was Curtis Mallet-Prevost and that put paid to a US$12 billion freezing order granted by the High Court in London in support of Mobil’s ICC claim; and that defeated a petition for section 1782 discovery brought by Caratube against Kazakhstan.
The Milan office welcomed former Eversheds partner Emanuella Agostinelli, who brings 20 years’ experience as counsel and arbitrator in investment and commercial arbitrations, as well as in transactional and financial restructuring work.
It promoted two female lawyers to counsel: Jennifer Morrison in Istanbul and Kate Brown de Vejar in Mexico City. Brown de Vejar is a member of the Australian delegation to the UNCITRAL working group examining transparency in investor-state arbitration. In DC, US-Iranian Borzu Sabahi joined as an associate after five years with Fulbright & Jaworski.
In addition to the cases already mentioned, 2011 was a good year for settlements. Cemex withdrew its ICSID claim for a US$500 million – half of what it said the expropriated assets were worth. The firm also helped Kazakhstan and KazMunayGas negotiate the termination of two UNCITRAL claims by an international oil consortium led by the UK’s BG Group and Italy’s Eni. The consortium has agreed to loan KazMunayGas US$1 billion to acquire a minority stake in the Karachaganak oil project.
The firm’s ties to Turkmenistan mean it has been picked by the state to deal with a salvo of new ICSID and ICC claims launched by disgruntled telecoms investors from the CIS region. White & Case is advising the claimants.