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GAR 100 - 9th Edition

Allen & Overy

17 February 2016

Home to the new president of the LCIA, the firm is busy with ECT claims against Spain and Italy

People in Who’s Who Legal 10
Pending cases as counsel 147
Value of pending counsel work US$35 billion
Treaty cases 18
Current arbitrator appointments 22 (of which 7 are as sole or chair)
Lawyers sitting as arbitrator 8

Allen & Overy became known in international arbitration thanks to former partner and arbitrator David St John Sutton. By the time he joined the bar in 2001, there were others ready to take over, including current partners Judith Gill and Matthew Gearing (both now QCs).

Allen & Overy’s team subsequently grew to be one of the biggest in the London market and one of the most admired, particularly as a finder of talent. It’s been an innovator too – bringing the first-ever Energy Charter Treaty claim and generally entering fast into the world of investment treaty disputes. Unlike some in the London market, A&O partners also do their own advocacy in international arbitration.

In 2005, it started branching out to other cities using lateral hires: first in New York, then Hong Kong and Singapore, and more recently Paris and Frankfurt.

After many years with Gill at the helm, the group is nowadays co-chaired by Gearing in Hong Kong and Michael Young in Paris. Young is building a commercial and investment arbitration practice focused on Africa alongside his energy practice. He was recently asked to edit the leading text on Paris-seated arbitration.

In 2015, Gill relocated to Singapore, underscoring the importance of Asia work to the firm. Despite her Asia base, she was also named as the next president of the LCIA, the first woman to be given the role. Since the days of St John Sutton, Gill and Gearing have edited Russell on Arbitration, one of the leading texts on English arbitration law (with their former boss as editor-in-chief). The 24th edition is expected soon.

Other names to know include partners Jeffrey Sullivan in London, Frances van Eupen in Hong Kong, Marie Stoyanov in Paris, Daniel Busse in Frankfurt, Mark van Brakel in Sydney and counsel Andrew Pullen in Singapore.

Network

The wider firm operates in 30 countries. For arbitration, the key cities are London, Paris (where it poached a team from Herbert Smith), Hong Kong, Singapore, Dubai, Amsterdam, Frankfurt and most recently Sydney and Perth.

A&O has an office in Casablanca, which works closely with the team in Paris, and this year opened in Johannesburg, making it one of the few big names in the GAR 100 with toeholds in Africa.

Who uses it?

Allen & Overy is renowned for arbitrations concerning oil and gas and renewable energy, the Energy Charter Treaty (especially against EU member states), derivatives and other financial products (thanks to the firm’s connection with ISDA, the derivatives standards organisation) and Bermuda form insurance. Geographical focuses include central America – especially Belize.

The firm is known for investment arbitration with a Chinese element.

Some clients that A&O is publicly linked with include European energy majors GDF Suez, Shell and BG, US energy company AES, China National Offshore Oil Corporation and Qatargas.

It’s also worked for telecoms groups Millicoms and Nokia, aerospace and defence company Airbus and Toshiba.

On the state side, the firm has been acting for Pakistan in three investment treaty arbitrations. The Netherlands, Peru, Slovenia, the UAE, Poland, Azerbaijan and Cuba are also clients. With Shearman & Sterling and Freshfields Bruckhaus Deringer it is one of China’s top three international law firms for investment treaty work.

Track record

Although there’s no single standout result, few practices have such a strong overall track record, although some of its big wins were achieved under past practice head Stephen Jagusch, who left to launch the international arbitration practice at Quinn Emanuel Urquhart & Sullivan.

In 2012, the firm won a US$60 million award on behalf of Deutsche Bank against Sri Lanka, which established that a derivatives contract does qualify as an “investment” under an investment treaty and the ICSID Convention. It is still defending the award in annulment proceedings.

In another banking matter, it successfully defended a bank against charges of mis-selling brought by a high-net-worth individual who’d lost a lot on FX and equity derivative contracts. The result is believed to have saved the bank almost US$100 million – or half its annual profits from that division.

Meanwhile, telecoms operator Millicom is only still in Senegal thanks to a series of Allen & Overy wins during the skirmishing stage of an arbitration (those wins led to contract-renegotiation), and various banks are also in its debt.

In court, it succeeded in lifting a series of Belizean court injunctions that had stalled investment treaty claims brought by its clients against the government and successfully defended an anti-suit injunction before the UK Supreme Court on behalf of AES (in a case about litigation in Kazakhstan). Both those results were in 2013.

Recent events

The firm brought an end to nearly seven years of litigation and arbitration proceedings against Belize with a settlement deal for clients British Caribbean Bank and Dunkeld International Investments.

Belize agreed to pay an arbitral award in favour of BCD in full, and drop jurisdictional and liability objections in the Dunkeld arbitration, leaving only the amount of compensation due to the client for the tribunal to determine.

It also won settlement of an unrelated claim against Belize by Canadian client Fortis. UK peer Michael Ashcroft, who denies any financial interest in the outcome of the proceedings, claimed to have played a “good Samaritan” role in settlement talks.

The firm’s India practice repeated past success by defending an award in favour of the UK’s BG Group and India’s Reliance Industries agains a court challenge from Indian government. It defeated a similar challenge in 2013. The dispute relates to oil and gas fields off the coast of Mumbai.

Meanwhile, Jeffrey Sullivan in London and Matthew Hodgson in Hong Kong are representing Finnish telecoms company Nokia in a potential treaty claim against India arising out of a retrospective tax assessments. Another potential investment treaty claim by a shipping group against India is on the horizon.

Pakistan once again turned to A&O to replace another firm as counsel in an investment treaty dispute – this time defending the state in the damages phase of a claim by Australia’s Tethyan Copper. The firm is also fighting ICSID claims brought against the state by Turkish ship company Karkey Karadeniz and LNG investor Ali Allawi.

It is acting in three consolidated treaty claims against Ukraine for London-listed JKX Oil & Gas over tax hikes and in January 2015 won what became the first emergency arbitrator award to be enforced against a state.

ECT claims relating to reforms to the framework for renewable energy in Spain and Italy continue to be a staple of its practice. It now represents more than 25 different investors in seven separate claims against Spain, including what is possibly the first ever “collective” claim under the Energy Charter Treaty (brought by 14 claimants against Spain).

The London and Milan offices are also advising on potential claims against Italy under the Energy Charter Treaty over investments in Italian renewables.

In Germany, partner Daniel Busse won enforcement of a €29 million UNCITRAL award against Thailand for the insolvency administrator of construction company Walter Bau. The case saw a rare amicus intervention from the German government arguing that Thailand had diplomatically confirmed a waiver of sovereign immunity.

The firm is appealing after a US$500 million award won for Swiss watchmaker Swatch was set aside by the Dutch courts. The award is against US jeweller Tiffany.

Marie Stoyanov in Paris was made partner and the firm also promoted four new counsel in Hong Kong, London and Amsterdam. A new partner specialising in M&A disputes was hired in Munich.

Fresh from helping to settle the Belize matters, solicitor advocate Angeline Welsh left the firm to become a barrister at Matrix Chambers.

Finally, Gill was named the best regarded person in arbitration by GAR’s sister publication, Who’s Who Legal.

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