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GAR 100 - 9th Edition

CMS

18 February 2016

* Excludes maritime cases

The Europe-centred network is acting in new ICSID claims against Montenegro and helped to enforce one of the first emergency arbitration awards against a state

People in Who’s Who Legal 5
Pending cases as counsel 88
Value of pending counsel work US$6.5 billion
Treaty cases 6
Current arbitrator appointments 65* (of which 37 are as sole or chair)
Lawyers sitting as arbitrator 25

Adopting a structure more commonly found in the accounting industry, the CMS network comprises 10 financially independent law firms each carrying the CMS brand along with their original names – for example CMS Cameron McKenna in the UK and CMS Hasche Sigle in Germany.

In 2005, the network made international arbitration one of its cross-organisation practice groups, paving the way for common training of associates and inter-office collaboration on cases. Initially, Guy Pendell in London led the cross-network international arbitration practice, then Torsten Lörcher in Cologne. In 2014, Dorothee Ruckteschler in Stuttgart took over, leaving Lörcher to focus on his role as head of CMS’s global dispute resolution group.

A star partner in the practice is busy arbitrator Klaus Sachs, based in Munich, who has recently joined the board of ICCA and been named one of the 25 most “highly regarded” figures in arbitration by GAR’s sister publication, Who’s Who Legal.

Network

The international arbitration group spans 33 countries, but the bulk of the team is in the UK, Germany and Switzerland.

The wider network expanded to Brazil in 2010 and to Barcelona, Beijing, Dubai and Lisbon in the past five years. It also has a presence at Arbitration Chambers in Hong Kong.

Two mergers in 2014 gave CMS additional power in Switzerland and Scotland: one with ZPG Avocats in Geneva – the firm of well-known Swiss arbitrator Charles Poncet – and another with Scottish energy and financial services firm Dundas & Wilson, which became part of the UK branch.

Who uses it?

It varies depending on which branch of the network you look at, but CMS’s clients include Xerox, Siemens, Rosneft, Roche and Nokia.

In the energy sector, CMS has featured on the panels of external counsel of Royal Dutch Shell, BG Group and National Grid. It has also worked for Shaher Abdulhak, one of Yemen’s wealthiest individuals, in a dispute with Norway’s DNO over oil production sharing arrangements in the autonomous Iraqi region of Kurdistan; for Portugal’s Galp Gas Natural in an LNG price review arbitration against a Nigerian company; and for a national transmission operator in an Energy Charter Treaty claim against Spain over the reduction of feed-in-tariffs for solar projects.

Outside the energy sector, the network has represented Poland’s General Directorate of National Roads and Motorways and a former subsidiary of Belgian manufacturer Agfa-Gevaert in a series of linked cases against its parent.

Since the last GAR 100, it has been retained by two Dutch investors in the steel industry, MNSS and Recupero Credito Acciaio, in a US$110 million ICSID claim against Montenegro.

Track record

In 2014, the Warsaw office obtained a positive award for Gdan´sk Transport Company in a four-year dispute with the Polish government, while CMS Stuttgart won a €61 million post-M&A dispute concerning the client’s alleged failure to disclose a European competition investigation by the European Commission.

CMS Bureau Francis Lefebvre in Algiers acted as co-counsel to Shearman & Sterling in an UNCITRAL dispute between an Algerian state entity and Egypt’s Orascom over mobile phone operator Djezzy, which ended in 2014 when Orascom agreed to transfer a 51 per cent stake in Djezzy to the state entity.

In 2012, a Zurich-led team knocked out the bulk of a US$64 million claim by German and Chinese companies against a Japanese client, Mori Seiki, in a case under the Swiss Rules that also saw the client’s US$500,000 counterclaim upheld. On the investment treaty side, the network secured a win for Romania as co-counsel with Winston & Strawn in one of the biggest investment cases the state has faced, brought by Greek national Spyridon Roussalis. It also provided local law advice to Russian oil company Tatneft in a claim against Ukraine under the Ukraine–Russia BIT, which led to a US$112 million award in Tatneft’s favour.

Recent events

With Allen & Overy and Vinge, CMS successfully convinced a Kiev court to enforce an emergency arbitration award against Ukraine in favour of the UK’s JKX Oil & Gas – the first time that such an award has been successfully enforced against a state. The award was in support of an Energy Charter Treaty claim and prevented the state from increasing royalties on gas production pending the outcome of the case. It was followed by similar interim measures imposed by the tribunal hearing the case.

To develop its manpower in 2015, CMS hired Dutch national Pieter Bekker in Edinburgh from Steptoe & Johnson. Bekker is the professor and chair of international law at the University of Dundee’s Centre for Energy, Petroleum and Mineral Law and Policy.

The firm also promoted Sarah Grenfell and Reto Hunsperger to partner in the UK and Switzerland, respectively.

In his role as chair of the Chartered Institute of Arbitrators practice and standards committee, London-based partner Tim Hardy is leading a team responsible for drafting a new set of rules for the institute and guidelines for arbitrators.

Sachs had another busy year as arbitrator. He chaired a panel in a US$3.8 billion dispute between German car maker Volkswagen and its former Japanese partner Suzuki, and also headed a tribunal that ordered Eni to pay €1 billion to Edison in a gas price review case.

Client comment

Alfredo Yañez Matesanz, head of the contracts administration department at Spanish company Iberdrola Ingenieria y Construcción, says the CMS London construction team advised his company on a matter where there was a significant amount of money on the table and an initial risk that an award could only go 100 per cent either way. “CMS proposed an alternative case that would allow the tribunal to compromise and maximise the chances of having a reasonable result for our company. I would certainly recommend this team to anyone looking for a top-class arbitration team,” he says. Yañez also describes the fees as reasonable for the services rendered.

Another client tells GAR that it was impressed by CMS’s firm grip on the proceedings. “CMS completely dominated the case from the beginning and this was particularly apparent in defining the issues. The tribunal performed the examinations, but the lead partner was able to push for certain lines of questioning and get our point across.”

A client in a post-M&A arbitration that it describes as the largest in the company’s history days it was very satisfied with CMS’s performance, singling out partner Guy Pendell and senior associate Louise Boswell for particular praise.

“The quality of the work was consistently at a high level. The advice – which was largely very industry-specific and needed to go into a great level of detail – was to the point and well presented,” the client says.

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