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GAR 100 - 9th Edition

De Brauw Blackstone Westbroek

18 February 2016

Followed a winning streak in gas price reviews with an instruction in the Yukos set-aside proceeding

People in Who’s Who Legal 1
Pending cases as counsel 23
Value of pending counsel work US$16 billion+
Treaty cases 0

De Brauw has a long tradition in arbitration – former partner Lodewijk Sillevis Smitt was president of the Netherlands Arbitration Institute for almost 20 years until his retirement in 2003. Partner Marnix Leijten has been a member of the ICC Court since 2006 – this year he became vice president – while Bommel van der Bend is a member of the NAI board. Another partner, Edward van Geuns, is on the board of the Dutch Arbitration Association launched in 2013.

Some of its success is thanks to its homeland’s central role in the European gas industry. De Brauw was one of the first to ride the wave of gas-pricing arbitrations that broke in Europe a few years back, and since then has won price readjustments for client GasTerra worth over €2.3 billion. The firm is also increasingly active in investor-state arbitration.

Network

Until recently the five partners in De Brauw’s international arbitration group were all based in Amsterdam, but as of January 2016 van Geuns will be in the firm’s Singapore office, forging an Asia-Pacific practice. The firm also has offices in New York, London, Brussels, Beijing and Shanghai.

Moreover, the firm is a member of the six-strong “Best Friends” network of law firms that work together on joint matters. The network includes Italy’s Bonelli Erede Pappalardo, France’s Bredin Prat, German firm Hengeler Mueller, Slaughter and May in the UK and Spain’s Uría Menéndez.

Its lawyers are admitted in England and Wales, New York, and Canada, as well as the Netherlands.

Who uses it?

Dutch and foreign multinationals, including healthcare insurer Achmea, chemical producer AkzoNobel, Dutch Railways, GasTerra, Philips, Shell, Telefónica, Unilever, travel commerce broker Travelport and semi-conductor manufacturer NXP Netherlands.

Former affiliates of Yukos Oil Company have used it in multiple cases, including efforts to enforce four Russian arbitral awards against Rosneft. Marnix Leijten has also appeared as an expert witness for Kazakhstan in an ICSID case (KT Asia).

Track record

The firm helped GasTerra – a joint venture between Shell, ExxonMobil and the Dutch government – win substantial retroactive price adjustments in two parallel arbitrations under long-term supply contracts with Italy’s Eni. In 2012, an UNCITRAL panel granted GasTerra a price increase worth €850 million, followed by a similar ruling in March 2013 by an ICC panel to the tune of €455 million. Freshfields acted for Eni in both cases. It topped these past successes this year with a new €1 billion win for the client.

The firm also won a €22 million UNCITRAL award for Dutch health insurer Achmea in 2012 – a case that raised questions regarding the validity of intra-EU bilateral investment treaties. Slovakia has been attempting, without much success, to challenge the award on damages and an earlier jurisdictional ruling in the German courts. De Brauw has reportedly succeeded in attaching Slovakian bank accounts in Luxembourg in support of the award.

That success was followed up last year when Slovakia shelved plans for another expropriation after Achmea filed a second claim, saying it lacked the funds to compensate the insurer.

Also in 2012, the firm scored two victories for semiconductor manufacturer NXP Netherlands in a post-M&A dispute with Switzerland’s STMicroelectronics. An ICC tribunal issued a US$59 million award in the client’s favour. A second case brought by the Swiss party in an attempt to reverse that outcome was dismissed a year later.

A further 2012 win was a €40 million award in favour of Electrabel and E.On Benelux in a Dutch arbitration against Nuon (owned by Sweden’s Vattenfall).

Recent events

The firm’s highest-profile new instruction has been from the majority shareholders in Yukos, whose record-breaking US$50 billion ECT award the firm is defending in theDutch courts. The enforcement proceedings are coordinated by Shearman & Sterling.

Its work for GasTerra and Shell produced a hat-trick of successes in 2015, including a €1 billion price decrease for the client.

It also won a favourable partial award for GasTerra in an ad hoc German law price review arbitration, with the opposing party’s price adjustment claim dismissed and a favourable settlement following soon after.

Its third victory was in a Geneva-seated ICC emergency arbitration arising from an LNG supply contract. The buyer’s application against De Brauw’s client was dismissed, with costs awarded on an indemnity basis.

Outside the realm of gas pricing, it secured the set-aside of a US$450 million award won against Tiffany by Swiss watchmaker Swatch. That ruling is now under appeal.

It has settled two NAI arbitrations for offshore oil and gas services client SBM Offshore against shipping company Vroon on favourable terms.

The firm is representing Norwegian fertiliser group Yara in a claim arising from its purchase of Swiss commodities trader Balderton, which Yara says was fraudulent. The firm recently picked up another instruction from Yara against a Russian supplier in the same matter.

Ongoing work includes a €700 million post-M&A claim for Dutch company Philips against Funai over the Japanese company’s failure to complete the purchase of its lifestyle entertainment division, and a €143 million claim for NXP against semiconductor producer STMicroelectronics, which relates to previous victories the firm won for NXP in ICC arbitrations in 2012 and 2013.

It is acting in a US$232 million dispute between Rompetrol and Kazakhstan’s state gas company KazMunaigas, as counsel to the latter.

Senior associate Albert Marsman has been promoted to the partnership, following his work on the Yukos, Philips, Achmea and GasTerra cases.

Client comment

A regular client who has used the firm in several high-value disputes in the last year says it “clearly beats its competitors in professionalism, preparedness, power of argumentation, alertness, tactics and thorough appreciation and understanding of the issues at stake.” Leijten is described as“exceptionally committed, with very strong ethical values and excellent performance both on the strategic level and in execution”; Bregje Korthals-Altes is “very solid” and “makes complex issues less complex”; and Marsman is “outstanding” in hearings.

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