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GAR 100 - 5th Edition

Herbert Smith

06 March 2012

A busy year saw changes in Europe and plans emerge for the Americas

People in Who’s Who:
10
Pending cases as counsel:
110
Value of pending counsel work:
US$10 billion
Treaty cases:
7
Current arbitrator appointments:
16 (of which 7 is as sole or chair)
No. of lawyers sitting as arbitrator:
9

The firm can be said to have pioneered the notion of the “solicitor-litigator” and, as far back as the 1980s, developed a unique reputation for dispute resolution thanks to partners including Dr Francis Mann and Lawrence Collins (now Lord Collins). Noticing, early on, that companies were moving away from litigation in the English High Court and towards international arbitration, the firm recruited Julian Lew (now QC) from Coudert Brothers who, along with the likes of

V V Veeder QC and Arthur Marriott QC, was one of a very few senior English lawyers with a name in the field.

Lew’s role was to hone the skills of senior litigators experienced in handling arbitrations in the energy and construction sectors to enable them to conduct cases in a truly international fashion. He was also tasked with developing a new generation of lawyers – something he now does on a larger scale through his role as founder of the School of International Arbitration at Queen Mary, University of London.

Many of Lew’s protégés have emerged as leaders in the field, at Herbert Smith and elsewhere.

Although the firm was quick to perceive the shift in client needs, it stopped short of creating a stand-alone arbitration practice, a fact that became a bone of contention. When Lew left to become a barrister in 2005, the firm changed tack and a formal international arbitration group came into existence.

The group was headed by Laurence Shore until his departure to Gibson Dunn & Crutcher a few years ago, and is now co-headed by Paula Hodges and Charles Kaplan in London and Paris. The firm was one of the first to run the London and Paris teams as a single profit centre – thus lessening the risk of internal competition.

Although it sometimes suffers by comparison with the firm’s litigation department, there’s no doubt that Herbert Smith’s international arbitration team is today one of the biggest in these two markets, held in high regard by the LCIA and ICC. It is also strong in investment treaty arbitration (London partner Matthew Weiniger is GAR’s regular correspondent on the topic).

In Asia, the firm has long been regarded as the biggest player in international disputes, with a network of specialists that includes Nicholas Peacock in Singapore; Alastair Henderson in Singapore and Bangkok; Justin d’Agostino in Hong Kong; and May Tai in mainland China.

2011 saw the firm announce plans for an office in New York – its first in North America. The news coincides with an increase in Spanish and Latin American work that’s been brought in by investment treaty specialist Christian Leathley, who moved from Curtis Mallet-Prevost Colt Mosle in 2010.

Network

Besides London and Paris, Herbert Smith has a presence in Brussels, Moscow, Madrid, Dubai, Abu Dhabi, Bangkok, Singapore, Jakarta, Hong Kong, Shanghai, Beijing, Tokyo and soon New York. The firm had an office in New York briefly in the early 1990s, but pulled out in 1994.

Who uses it?

In recent years, the arbitration practice has worked for the Channel Tunnel operating consortium and the US government, and the government of a former Soviet republic facing the monumental fallout of alleged fraud at a metals business. (Herbert Smith reputedly billed US$100 million for that instruction, which encompassed several different pieces of litigation and arbitration.)

Other clients include Accenture, AkzoNobel, ArcelorMittal, Areva, BAE, BG, BP, Chevron Texaco, Coca-Cola, Daewoo, DFR, ENI, GDF Suez, Hess, Huawei, Mitsubishi Heavy Industries, PricewaterhouseCoopers, Renaissance Capital, Tata, Telekom Malaysia Berhad, Vodafone and Volvo.

It’s also been working for a South East Asian state in maritime boundary disputes with two neighbouring countries (a potential UNCLOS Annex VII arbitration), and advising one of the world’s largest energy companies on China’s maritime boundaries in the South China Sea.

Standard Chartered Bank is using it in connection with an investment in a power station in Tanzania. That dispute has given rise to ICSID arbitrations and other matters.

Track record

The firm won the Sangatte case for Eurotunnel. The case, which was against both the UK and French governments, took place in front of a five-person arbitral panel and resulted in a payment of £30 million – The Lawyer described it as “a landmark success in the biggest arbitration the world has ever seen [...] A masterful performance.”

It can also point to wins for Stagecoach (again, against the UK government) and the US (in a case against Canada about softwood lumber), for Kuwaiti telecom operator Wataniya (in a dispute over the forced sale of a stake in a Tunisian mobile operator), for BP and Rio Tinto (in ICSID matters about operations in Borneo) and for Vodafone (in the jurisdictional stage an LCIA arbitration against Spain’s Telefonica under EC law).

Recent events

The group arguably suffered a blow to its position in Paris when it lost partner Michael Young, who accepted an offer to lead the Allen & Overy Paris practice. In London, it said goodbye to senior associate Promod Nair, who left London for a firm in his native Bangalore; and David Brynmor Thomas, who retired as a senior partner to join 39 Essex Street, a barristers’ chambers in London.

In Asia, it recruited Jessica Fei, a former CIETAC case manager, in Beijing, and relocated Simon Chapman from Paris to Hong Kong in his first year as partner. The firm notes with satisfaction that, since the elevation of May Tai to partner, the China arbitration team has doubled in size and won “International Dispute Resolution Team of the Year” in the China Law and Practice Awards in Beijing.

In early 2012, partner Nick Peacock returned to London after a two-year posting in the Singapore office. He’ll continue to focus his arbitration practice on South East Asian and Indian disputes.

Two of the firm’s younger partners – Emmanuelle Cabrol in Paris and Justin d’Agostino in Hong Kong – featured in GAR’s “45 under 45”, with Nick Peacock also featuring as a runner-up.

Since the arrival of Christian Leathley a year ago, the firm has noticed an increase in its high-profile Latin American clients, and has cases in the pipeline against Latin American states. It’s also bagged an important brief from the Spanish government, defending claims brought by some 14 solar energy investors. Leathley is understood to be handling that claim along with partner Ignacio Díez-Picazo in Madrid.

In Dubai, partner Craig Shepherd rendered the first DIFC-LCIA award to be enforced. An LCIA award obtained by the group against a Russian company on behalf of Ciments Français was set aside in Turkey but then upheld by the Siberian enforcement court, in a case that has been referred to as “a Russian Putrabali”.

In early 2012, the firm acted for a consortium of Japanese utilities in a merits hearing in what is believed to be the largest pending LCIA arbitration. A team of 25 lawyers will be deployed worldwide, led by Dominic Roughton and David Gilmore in Tokyo.

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