Increasingly in demand for investment treaty advice – among investors and states alike
|People in Who’s Who Legal:||3|
|Pending cases as counsel:||90|
|Value of pending counsel work:||US$21.9 billion|
|Current arbitrator appointments:||46 (of which 28 are as sole or chair)|
|Lawyers sitting as arbitrator:||22|
Jones Day has its origins in the United States but is now just as well known for its arbitration offering in Europe. The Paris office in particular has long been regarded as a serious player in ICC work – partner Michael Bühler is co-author of a handbook on ICC arbitration and co-headed the drafting subcommittee for the revised ICC rules.
In Madrid, partner Mercedes Fernández, who cut her teeth at Bernardo Cremades’ firm, has a successful track record on investment treaty claims with a Spanish angle.
In the United States, the firm represented the claimant in the first ever investor-state arbitration against the US government under Chapter 11 of the North American Free Trade Agreement. It went on to act in important standard-setting cases under the same treaty, such as Loewen, which examined denial of justice as a breach of the treaty for the first time.
A restructuring in 2012 brought all of the firm’s lawyers with international arbitration experience together under a new global disputes group led by partner Tim Cullen in Washington, DC. The group embarked on a major hiring programme, adding big names such as Jean-Pierre Harb from Baker & McKenzie in Paris and Baiju Vasani from Crowell & Moring in Washington, DC.
Cullen no longer leads the group, after DC-based partner Gregory Shumaker was named head of global disputes this year.
The main offices for arbitration are London, Paris, Madrid, Washington, New York, Dubai, Singapore and Sydney – with other partners based in Amsterdam, Brussels, Düsseldorf, Frankfurt, Miami, Moscow, Munich, Dallas, Irvine, Los Angeles, Mexico City, Pittsburgh, San Francisco, Perth and Taipei.
Who uses it?
Investment treaty clients include Enersis (a Chilean subsidiary of Endesa) and Spanish water company Urbaser for claims against Argentina; Kazakh private equity group Visor for a claim against Uzbekistan; and Canada’s World Wide Minerals and Alhambra Resources for disputes with Kazakhstan.
As for governments, it’s representing Kyrgyzstan in a pair of commercial arbitrations and was recently added by the Chinese government to a panel of preferred counsel for investment treaty advice. It has also advised China’s Petrocom and the government of Laos.
Other clients include Chevron (in many aspects of its long-running dispute over liability for environmental pollution in the Ecuadorean Amazon), Siemens, Russian mining company AGD and US paint retailer Sherwin Williams. Mexican cement company Cemex has used the firm for arbitrations with a Spanish law or language element.
Back in 2003, the Madrid office scored a win for Técnicas Medioambientales against Mexico in the first ICSID arbitration brought under the Spain–Mexico bilateral investment treaty. Referred to as the Tecmed case, the proceeding helped define the scope of the fair and equitable treatment standard.
In another case against Mexico concerning a hazardous waste landfill, the firm won US$47 million for French waste management company Veolia.
It has helped Cemex win more than €40 million in damages and costs in an ICC claim against Austria’s largest construction group, Strabag. Bühler handled the case, with the award later upheld by an Austrian court.
The firm negotiated a favourable end to a dispute over a billion-dollar diamond find in Russia, on behalf of AGD. The client’s business partner, Archangel Diamond Corporation, had initiated arbitration in Stockholm.
In 2012, Jones Day’s client, Urbaser, secured a jurisdictional win in its ICSID claim against Argentina. The tribunal ruled unanimously that Urbaser need not observe a local courts requirement in the Spain–Argentina BIT. Mercedes Fernández is running that case.
And in 2013, the firm advised regular client Gazprom Export in gas price review proceedings against the Czech arm of RWE Transgas. Arbitrators in Austria issued a “compromise” award, reworking the gas price formula in the two companies’ contracts, but rejecting all other claims by RWE. It marked the first gas price dispute against Gazprom Export that reached the award stage.
Partner Hamish Lal in London left the firm in early 2016 after leading the construction disputes practice for seven years; he’s joined Akin Gump Strauss Hauer & Feld.
Johannes Willheim joined as partner in Frankfurt, while Denis Gebhardt arrived from Beiten Burkhardt in Düsseldorf. Michèle Gregoire, one of only 20 lawyers admitted to the Belgian Supreme Court, joined the firm’s Brussels office from Willkie Farr & Gallagher.
Latin American arbitration specialists Carlos Concepción and Ricardo Puente joined the partnership in Miami. Meanwhile the Mexico City office welcomed partner José Antonio Vázquez Cobo and of counsel Matias Bietti – part of a larger group that decamped from Greenberg Traurig.
Jones Day was instructed by a Luxembourgish company in a claim worth over €100 million for the alleged expropriation of its 47 per cent stake in the Commercial Bank of Cameroon.
The firm won US$80 million plus interest and costs for Egypt’s Orascom Construction Industries and a Lebanese partner in a Cairo-seated case concerning a high-profile real estate venture in the Egyptian capital.
But there was disappointment in another case, a US$200 million ICC claim it brought on behalf of two mining companies against Ghana. The claim was dismissed with costs.
Michael McNicholas, general counsel of Kazakh private equity client Visor Holding, describes the Jones Day team as “very responsive, attentive and highly motivated”. In particular, Baiju Vasani and Melissa Gorsline are “great tacticians and strategists” who show “exemplary leadership for their team”.