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GAR 100 - 5th Edition

Winston & Strawn

05 March 2012

Changes in line-up don’t seem to have affected the firm’s ability to produce a big result.

Pending cases as counsel:
12
Value of pending counsel work:
US$19.2 billion
Treaty cases:
5
Current arbitrator appointments:
2 (of which 1 is as sole or chair)
No. of lawyers sitting as arbitrator:
1

Winston & Strawn has had arbitration specialists in the US and Europe for many years – but the line-up has changed a fair amount in that time.

The origins of the group go back to 1993, when the firm merged with Geneva boutique Surrey & Morse. It was a unique local outfit comprising US litigators and Swiss lawyers who undertook WTO work and advocacy before international tribunals, especially the Iran-US Claims Tribunal. The practice later expanded to Paris (reportedly to help long-term client Disney) and to Washington, DC, as investment arbitration took off. In 2008, when Heller Ehrman collapsed, the firm bolted on its arbitration practice in Hong Kong.

However, since that era, a chunk of the Washington, DC, office left for Foley Hoag and Arnold & Porter, while in Geneva, the anchor of the commercial arbitration practice, Marc Palay, moved to Sidley Austin.

More recently, Foley Hoag poached two partners in the Paris office – Bruno Leurent and Thomas Bevilacqua – and a team of associates.

To the firm’s credit, it’s been quick to fill any gaps: it relocated Ricardo Ugarte from Chicago to Geneva (he’s a member of the ICC investor-state arbitration task force) and hired two members of the international arbitration team of Morgan Lewis & Bockius in Washington, DC – Mark Bravin (who cut his teeth representing US claimants before the Iran-US Claims Tribunal) and of counsel Don Wallace, who’s sat as an ICSID arbitrator.

The Geneva office has also made an of counsel hire.

It has to be said, for all this to and fro, some of the firm’s bigger cases have been going just fine.

Network

In the US, the practice has boots on the ground in Washington, DC, New York and, to a lesser extent, Chicago and Houston.

In Europe, it’s based in Geneva and Paris. In Hong Kong, the point person is David Hall-Jones, an accredited CIETAC arbitrator.

Who uses it?

States, for the most part. The firm is defending Ecuador in a range of arbitration and US court matters, including in the multi-front efforts by Chevron to block enforcement of an US$18 billion court judgment on environmental liability. It’s also acting for Chile in the interminable Victor Pey Casado proceedings at ICSID (concerning a newspaper expropriated by the Pinochet regime) and advised Jordan in another ICSID matter.

There are some investors on the books too – it’s acting for two central European investment funds in a claim against Bulgaria concerning a waste management company.

Meanwhile, Don Wallace is also advising Philip Morris Asia in connection with its controversial treaty claim against Australia over tobacco packaging legislation.

Past clients include Abbott Labs, Motorola, Symbion Power, Alstom (concerning a project in Afghanistan), engineering consultancy AMEC and US manufacturer PPG.

Track record

Pretty good, it has to be said. In December 2011, Mark Bravin, working in tandem with a team from CMS Cameron McKenna in Bucharest, had a US$140 million ICSID claim against Romania thrown out – and recovered US$8 million in costs. (Greek national Spyridon Roussalis brought the case over his stake in a privatised frozen-food warehousing business.) The case wasn’t an unalloyed success though, as a majority of the panel also rejected Romania’s counterclaim for US$80 million.

Meanwhile, its client Ecuador professed to be delighted when the tribunal in The Hague hearing a claim by Chevron only awarded the oil company US$96 million. That sum fell well short of the US$700 million Chevron was asking for.

The Winston team was led by C MacNeil Mitchell and Eric Bloom in Washington, DC (with Foley Hoag as co-counsel). That case concerned the failure of the Ecuadorean courts to resolve a number of contractual disputes over 15 years and is separate from the “Lago Agrio” environmental liability dispute in which the firm is also involved.

The team secured Ecuador a good result in 2010 too, helping to defeat a US$200 million claim by Murphy Oil at the jurisdictional stage. (The panel ruled that the investor hadn’t complied with a six-month cooling-off period mandated in the BIT before filing for arbitration.)

The counsel on the other side in that one? King & Spalding.

In the US courts, it managed to halt a US$6 billion arbitration initiated by Chevron and Texaco against Ecuador under AAA rules. The decision was upheld on appeal in 2009.

Recent events

After the departures documented above, the firm made a number of hires and reshuffles in 2011. As well as Bravin and Wallace joining in Washington, DC, at the start of the year, New York partner John Roesser moved to the international arbitration practice in September, having previously worked in the firm’s securities litigation group.

Meanwhile in Geneva, of counsel Laurence Burger joined from Swiss firm Tavernier Tschanz.

Serendipitously, Mark Bravin received news of his client’s victory in the Spyridon Roussalis v Romania case a day before he spoke at a seminar in Bucharest on the subject of dispute resolution and pre-investment planning.

The firm’s work for Ecuador against Chevron continues to take unexpected turns. Although the Lago Agrio plaintiffs obtained an US$18 billion court judgment against Chevron in early 2011, an UNCITRAL panel at The Hague has ordered Ecuador to take all possible measures to stop its enforcement. In early 2012, the panel reissued its interim order as an interim award, meaning Chevron can now get it enforced in national courts under the New York Convention.

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