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GAR 100 - 9th Edition

Orrick Herrington & Sutcliffe

18 February 2016

Now with a foothold in Geneva

People in Who’s Who Legal: 3
Pending cases as counsel: 31
Value of pending counsel work: US$12.3 billion
Treaty cases: 6
Current arbitrator appointments: 39 (of which 11 are as sole or chair)
Lawyers sitting as arbitrator: 10

Orrick’s international arbitration group began on the West Coast of the US, but only gained momentum during the 2000s when it branched into Europe.

In 2005, the firm picked up several members of the highly respected arbitration group at now-defunct firm Coudert Brothers, including some partners in London and Moscow, and the venerable Laurie Craig in Paris. A year later, it absorbed Rambaud Martel, one of Paris’s elite M&A boutiques, adding serious credibility in France. And in Germany it absorbed Hölters & Elsing – home to Siegfried Elsing, one of Germany’s pre-eminent practitioners and arbitrators. Elsing now co-leads Orrick’s international arbitration group with Robert Sills in New York.

The firm has continued to make impressive lateral hires, including Laurent Jaeger, formerly of Latham & Watkins’ Paris office, in 2009; and Charles Kaplan in 2013, who formerly co-headed the international arbitration practice at Herbert Smith Freehills in Paris.

Network

The key offices for arbitration are Paris, London, Düsseldorf, New York, Hong Kong and Tokyo, with other members of the group based in San Francisco (where the firm is headquartered) and Silicon Valley. As of 2015, the group also has a presence in Geneva (see “Recent events”). The wider firm has 25 offices across Europe, the US and Asia and an affiliated office in Abidjan, Ivory Coast.

Who uses it?

The firm’s strong Parisian arm counts several French-speaking countries among its clients, including Gabon and Guinea (which has been using it on a number of ICSID matters). It is also acting for mining investors bringing ICSID claims against Mauritania and Mali, and for investors in one of the many Energy Charter Treaty claims filed against Spain over its solar power reforms.

On the commercial side, it has been defending Dow AgroSciences in a large ICC case brought by Germany’s Bayer over patents for herbicide tolerance technology. Norwegian telecoms company Telenor has repeatedly instructed Orrick since 2006 in a series of arbitrations and litigations stemming from its turbulent business relationship with Russia’s Alfa Group. Ford Motors, Four Seasons Resorts, Bosch, Total and SGS are also clients.

Track record

The cases for Telenor saw Orrick winning at every step. At the outset, the firm obtained an anti-suit injunction in a New York court allowing an arbitration over a joint investment in Ukrainian telecoms company Kyivstar to go ahead. It then won the arbitration, confirmed the award in New York, and obtained contempt of court rulings – twice – and large fines against the opponent, Alfa Group, for non-compliance with the award.

Later, Telenor used it again for an UNCITRAL arbitration against Alfa over some joint interests in Russia’s VimpelCom, which again went in Telenor’s favour. The parties settled their differences in 2010, cancelling all outstanding actions, and created a new joint venture in Amsterdam. But the saga didn’t end there: they entered arbitration again later, with Orrick still behind Telenor in a new dispute over pre-emptive rights that was settled following hearings in 2012.

In 2014, the firm helped Guinea see off a US$120 million ICSID claim brought by a local soft drinks manufacturer, when a panel found there was no evidence the claimant was under foreign control when it was established.

Orrick helped a financial services firm, Amaprop, win more than US$48 million in an ICDR case against an Indian joint venture partner. A team led by Robert Sills then coordinated enforcement efforts in the US, UK and India before the case was settled.

The firm also helped German electronics company Bosch prevail in an ICC case against Honeywell over funds paid into an early retirement programme for workers exposed to asbestos. Bosch later retained Orrick in another ICC arbitration seated in Korea.

While at his former firm, Jaeger helped French LNG containment company Gaztransport & Technigaz defeat a €300 million claim by shipbuilder Chantiers de l’Atlantique. He has since helped to uphold the award against a court challenge.

Recent events

In 2015, Orrick opened a Geneva office headed by Vanessa Liborio Garrido de Sousa, who joined with of counsel Rena Scott from Akin Gump Strauss Hauer & Feld. Meanwhile Robert Pé, head of Orrick’s Asia dispute resolution practice in Hong Kong, left to join Gibson Dunn & Crutcher in Hong Kong.

Karsten Faulhaber was promoted to partner in Düsseldorf, where Nicholas Kessler was also named counsel. Janie Wong became of counsel in Hong Kong.

Orrick has continued to bring in good results for the government of Guinea. In late 2015, it persuaded an ICSID tribunal to throw out a US$91 million claim against Guinea on the basis that the claimant didn’t qualify as a “foreign investor” (there was no clear definition of the term in the investment code under which the claim was brought).

The firm also managed to have a €38.5 million award against Guinea annulled by a West African regional court, the Common Court of Justice and Arbitration in Abidjan. The court ruled that the arbitrators had breached their mandate by negotiating directly with the parties over their fees – prompting a letter from the arbitral tribunal accusing the court of undermining international arbitration.

Charles Kaplan represented French energy company Engie in a gas-pricing dispute under French Arbitration Association rules, which settled in June 2015. He also picked up an instruction from German investor SolEs Badajoz for an ICSID claim against Spain over its renewable energy reforms.

Orrick was instructed by Toshiba to defend it in litigation before the US courts, as well as in an ICC arbitration seated in Tokyo.

Client comment

Robert Drolet of Kuwait Projects says of his work with the firm: “The team was efficient and responsive. Billing was regular and detailed, and openly discussed to avoid any misunderstanding. I would recommend them without hesitation.”

Julia Friebel, general counsel of OMV Aktiengesellschaft, describes Kaplan as an ideal lawyer for “sensitive arbitration of high importance.”

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