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GAR 100 - 5th Edition

Wilmer Cutler Pickering Hale and Dorr

05 March 2012

Here’s a story that shows you the type of place WilmerHale’s international arbitration practice is.

People in Who’s Who:
5
Pending cases as counsel:
63
Value of pending counsel work:
US$60.5 billion
Treaty cases:
6
Current arbitrator appointments:
38 (of which 13 are as sole or chair)
No. of lawyers sitting as arbitrator:
4

Not long ago, an extremely well-known global brand name “woke up to the fact” that it was “in a deep hole” in one of its arbitrations.

A small-looking ICC case, to which it hadn’t been paying much attention, had blown out of all proportion: the company had lost on liability and now its opponent was talking damages of US$100 million. On the off chance, the business went to Wilmer Hale to see if anything could be saved. A number of powerfully worded memorials later, the ICC court replaced the panel’s president. The case didn’t go back to the beginning, but thanks to a number of decisions by the new chairman, the client felt very much it was back in the game.

It almost goes without saying – the ICC court doesn’t replace the president of a tribunal after it’s made its key ruling very often. (In fact, when asked “how often?”, one very notable authority on ICC practice replied, “Well… I’ve never heard of it before.”)

But that’s WilmerHale’s reputation: somewhere you can go when you need a miracle pulled out of the hat.

The firm’s international arbitration group grew in part out of one of the parent firm’s role top-level international disputes. In the 1980s, the famous Lloyd Cutler – of Wilmer Cutler & Pickering – organised for his firm to represent Greenpeace in arbitration against France over the sinking of the Rainbow Warrior. Ten year’s later, he did the same for Eritrea in a dispute a territorial dispute with Yemen heard in The Hague.

In both matters, the work was led by Gary Born, a former clerk to Supreme Court Justice William Rehnquist who went on to make a name for himself in both international litigation and arbitration.

The taste that those arbitrations gave Born – of what it was like to be in charge of the whole file, rather than reporting to another WilmerHale partner as tended to happen in his litigations – shifted his focus to arbitration, at least when it came to his practice (as an academic, he’s continued to publish leading works in both fields). Today, his book International Commercial Arbitration is the most detailed treatise on the field.

Early developments took place in London. A pair of sizeable instructions for Deutsche Telekom (Born was raised a US ex-pat in Germany) on a monumental ICC arbitration and from a leading oil company created excellent conditions for growth.

The team swiftly developed a cosmopolitan composition, with numerous lawyers from civil law jurisdictions and a range of mother-tongues – WilmerHale was one of the first groups to have a civil-law trained partner resident in London full-time (Franz Schwarz). It also became known both for its house-style – best described as “completist” – and its track record.

Many of the original associates have now become partners. The firm has promoted around six partners in eight years. It has also continued to work on interesting non-commercial matters – most recently for the government of South Sudan in the arbitration that preceded its gaining independence.

A number of the senior members have books in print and between them estimate they’ve taught international arbitration at 33 schools and universities. They also operate a scholar-in-residence programme.

The modern era has seen the group branch into the US (New York and Washington, DC) and now Germany. It has also created two co-chairs – Rachel Kent and Franz Schwarz – so reducing reliance on Gary Born.

In 2010, the London international arbitration team moved into new headquarters on Park Lane that allow it to also work as a hearing centre. The fact that the London team continues to be housed separately from the WilmerHale corporate department has preserved the sense of of a firm within a firm.

Network

The key offices for international arbitration are London, New York, Washington, DC and now Frankfurt. Two senior names now split their time between London and Frankfurt.

Who uses it?

That’s a tricky one. The firm is backwards in coming forwards with clients – and it isn’t yet a big player in investment work: it’s most widely reported instructions have come from Deutsche Telekom and Repsol.

It’s also known to have worked on a number of the larger arbitrations in Europe about gas-price reopener clauses.

The group has a policy of turning away lower-value work.

Track record

Excellent, by all accounts. One younger WilmerHale partner told a reporter that, until surprisingly recently, the team hadn’t ever been on the losing side in a case that went the distance. Lest it sound boastful, it was in the context of a conversation about the group’s reputation being something of a poisoned chalice when it comes to quality of life.

One of the teams most famous results was to help Deutsche Telekom oust Vivendi from a stake in a Polish telecoms firm in a bitter billion-dollar fight. It then successfully defended the outcome in litigation around Europe. The matter was only recently closed. Vivendi described the outcome of the original arbitration as tantamount to “robbery”.

In the early 2000s, it pulled off a similar trick for the same client – against France Télécom.

More recently, the team’s clients from South Sudan spontaneously broke into a song of praise for their lawyers after the result of the boundary arbitration at The Hague became known. Luka Biong Deng, the minister for presidential affairs, later said the firm’s work was “extraordinary in every way”.

Recent events

The group added Paul Oberhammer in mid-2011 as of counsel, thereby expanding its German-speaking arbitration capacity. Oberhammer sits frequently as an arbitrator and is a respected academic and authority on Swiss, German and Austrian arbitration law. He and Franz Schwarz now split their time between London and Frankfurt.

In the lower ranks, it moved three senior associate-type lawyers to the US offices from Europe and promoted two senior associates to the counsel tier (in London).

In New York it added Janet Carter, a former clerk to US Supreme Court judge Sandra Day O’Connor who was already in the firm but working in another department. The New York office has also laterally recruited Claudio Salas (at counsel level) from a rival firm. Salas focuses full-time on investment arbitration.

Franz Schwarz, meanwhile, saw his guide to the ICDR Rules published (co-written with Martin F Gusy and James Hoskings).

And Gary Born won the GAR’s “Advocate of the Year” award.

The team also hosted a number of arbitration events at their new London premises – including a seminar for the Netherlands Arbitration Institute and a training event for the African Legal Awareness Association.

The group is pleased to have received a hefty new instruction from an Asian client. It will defend the manufacturing firm in as many as 10 arbitrations that are now taking place with various major airlines.

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