The US firm helped Greece defeat a claim related to its sovereign debt crisis and is defending Austria and France against their first ICSID claims
|People in Who’s Who Legal||1|
|Pending cases as counsel||80|
|Value of pending counsel work||US$100 billion|
|Treaty cases||around 27|
|Current arbitrator appointments||33 (of which 16 are
as sole or chair)
|Lawyers sitting as arbitrator||4|
2014 brought high profile losses in the Yukos case and BG Group v Argentina but this hasn’t stopped states and other clients using Cleary Gottlieb in the way they have always done.
The firm has been involved with major international arbitration matters as part of its broader transactional and disputes practice since it opened its first office outside the US in 1949 in Paris. It claims to have represented more sovereigns in more substantial matters than virtually any other law firm. A high proportion of cases are led by partner Claudia Annacker in Paris, lead counsel in Yukos.
Partners who sit as arbitrator include Ferdinando Emanuele, mainly under ICC and Milan Arbitration Chamber rules; Jean-Yves Garaud, under ICC rules; Richard Kreindler under DIS and ICC rules; and Romano Subiotto at the Court of Arbitration for Sport.
The firm has international arbitration specialists in seven offices worldwide handling multi-jurisdictional matters, with the US and Europe-based lawyers routinely working together.
The New York office has the highest number of specialists – including six partners – followed by London with three partners and Paris with two. Frankfurt has three partners; Rome and Washington, DC, has two apiece; and there are partners in Brussels and Milan.
Who uses it?
Apart from Russia and Argentina, clients in international arbitration have included Egypt and Greece in treaty-based ICSID arbitrations and France and Austria in their first arbitrations at the centre. It is also representing Iraq in an ICC case with Turkey and its state-owned pipeline company over the transport of crude oil from Kurdistan in breach of inter-state agreements.
Russia continues to use the firm in other Energy Charter Treaty matters arising from the collapse of Yukos – namely, UNCITRAL arbitrations brought against it by Luxembourg and Netherlands-based former subsidiaries of Yukos and a Cyprus-based former shareholder. Gazprom and Rosneft are also clients.
Argentina likewise remains loyal, using it to fight an ICSID claim brought by a group of 60,000 Italian bondholders affected by the state’s 2001 sovereign debt default.
Commercial clients include ArcelorMittal, Del Monte International, EDF, Renaissance capital affiliate Agrera, Telecom Italia and Egyptian telecoms company Orascom.
The lack of an Asia presence hasn’t stopped the firm representing clients like Daewoo International Corporation and Huawei. It is also advising a Finmeccanica company in an ICC arbitration with a Korean company over the alleged infringement of trade secrets relating to the sale of guns to the Korean navy.
In the Americas, it is representing UAE port operator DP World in an ICSID case against Peru over its alleged exclusion from a tender to operate the state’s largest commercial port, Callao. It is also representing Citigroup in connection with the battle for corporate control of Brasil Telecom and Goodyear tire company in a dispute with a Polish subsidiary.
In 2014,Cleary secured the dismissal of claims brought by a hotel investor against Egypt – only the second known time a tribunal has dismissed claims based on a fork-in-the road clause in an investment treaty.
In the same year, Cleary won a treaty claim for Russian oil company Tatneft against Ukraine concerning the forcible takeover a refinery, securing an award worth around US$131 million.
Big wins from 2013 and before include successfully defending Iraq’s Ministry of Electricity against a breach of contract claim by Vulcan Energy Solutions under the rules of the American Arbitration Association and the Iraqi government against a claim by a liquidated German state-owned company under the rules of the Austrian Federal Economic Chamber.
The second of these disputes involved issues of compliance with UN sanctions enacted against the regime of Saddam Hussein. Cleary demonstrated the financial arrangement on which the claims were based was a scheme to release frozen Iraqi assets in violation of financial sanctions imposed by the UN Security Council, Germany and Austria, leading the tribunal to dismiss all claims.
The firm obtained a win for Greece in April 2015 in an ICSID arbitration initiated by a Slovakian bank and its Cypriot shareholder, challenging measures taken in response to its financial crisis. The tribunal dismissed all claims for lack of jurisdiction, holding that interests in Greek government bonds do not qualify as protected investments under the relevant BIT or under the ICSID Convention. The firm is now defending the award in annulment proceedings.
It helped Gazprom settle a dispute with Lithuania concerning the divestiture of a gas distribution company, which ended satisfactorily for the client with a deal involving the purchase of the investment by state-owned companies.
It also reached a commercial arbitration settlement on behalf of Del Monte in a US$90 million freight agreement dispute arising in the context of a course of dealing of over 30 years.
Proving its reputation for state work, the firm is defending France against its first ICSID claim – brought by a Turkish individual in relation to purported IP rights. It’s also fighting the first claim against Austria, brought by a bank owned by Julius Meinl V – part of a famous Austrian business dynasty.
At the start of 2015, the firm promoted Ari MacKinnon, a fluent Spanish speaker, to partner to bolster the firm’s Latin America practice. MacKinnon is based in New York. Laurie Achtouk-Spivak in Paris, Milo Molfa in London and Francesca Gesualdi in Milan were promoted to counsel.
Gabriel Bottini, formerly part of the treasury attorney general’s office of Argentina, says of Cleary’s work on the Abaclat case: “We were impressed when we received the drafts of the written submissions on the law and practice of sovereign debt issuance and restructuring and on certain specific aspects of Italian law. These were mostly unchartered waters in investment arbitration, which were dealt with thoroughly and cogently.”