Represented Philip Morris in its claim against Australia
|People in Who’s Who Legal:||4|
|Pending cases as counsel:||123|
|Value of pending counsel work:||US$81 billion|
|Current arbitrator appointments:||24 (of which 9 are as sole or chair)|
|Lawyers sitting as arbitrator:||4|
Sidley Austin earned its international arbitration stripes around 2002. In that year, it purchased a trade and investment disputes boutique in Washington, DC, and Geneva. The new members of the firm, in particular Dan Price, were among the first to evangelise the use of bilateral investment treaties.
Price is now a noteworthy independent arbitrator, but the Sidley practice goes from strength to strength.
Early on, the practice scooped a number of BIT arbitrations, in addition to major World Trade Organization disputes work. It won one of the longest and most procedurally complex arbitrations against Argentina ($200 million, for Vivendi) and has gone on to become a bigger and bigger name in the area.
Later, it added a commercial arbitration practice, kickstarted by the arrival, in Geneva, of two partners (US-trained Marc Palay, ex-Winston & Strawn, and David Roney, ex-Schellenberg Wittmer – both long-time residents in Switzerland). That side of the practice has expanded considerably since their arrival.
In recent years, the team has grown in New York and London. In 2013, Benno Kimmelman and Dana MacGrath – commercial arbitration specialists known for Latin American and energy work – joined the New York office from Allen & Overy. And in London, the team was joined by Matthew Shankland from Weil Gotshal & Manges, who has acted on high profile disputes arising from the collapse of Lehman Brothers. including financially complex derivative arbitrations.
There’s also an Asia practice, led by Allen Kim in Los Angeles.
The IA practice is co-led by Stanimir Alexandrov, Benno Kimmelman and Marc Palay.
The important offices for international arbitration are New York, Geneva, London and Washington, DC. There’s also a Dallas office, staffed by ex-Weil lawyers, with a high turnover of oil and gas-related work. But the firm stresses that it will cover any dispute anywhere, irrespective of the location of its offices.
Who uses it?
Sidley Austin is the kind of place that blue-chip companies – such as Philip Morris and Airbus – go to when they have “global” trade issues that require a multi-pronged attack. It also does a lot of work for governments, particularly in Latin America, and investors in the BIT area. On top of that it’s becoming popular for CIS-related commercial cases, in Europe.
Clients include Atomstroyexport (an affiliate of Russia’s state-owned Rosatom), Berkley HeartLab, Formosa Plastics, GATX Corporation and Rusal. On the state side, it’s acted for Costa Rica, Peru, Turkey and China (which recently added it to panels of law firms it will instruct in investment and trade matters).
It’s acting on the first investment treaty arbitration against Korea, for the US’s Lonestar Funds.
Notably it’s also acted for the ICC and ICSID (representing the latter in US court proceedings when it was sued by US oil investor Jack Grynberg).
Eye-catching commercial results have included a hat-trick of wins for Russian aluminium producer Rusal in a long-running feud with Tajikistan’s state-owned aluminium company, Taclo. The most significant of these was a US$275 million award for Rusal subsidiary Hamer Investment against Talco in October 2013, a case heard under the Swiss Rules.
The same team helped another Rusal entity, Albaco, win US$71 million in an ICC case against a Talco shell company, CDH, defeating a mirror case brought against it at the SCC.
On the investment treaty side, the the firm secured a good result for Turkey in 2014, when an ICSID annulment committee refused to overturn a 2012 award dismissing Dutch power investor Alapli Elekrik’s US$100 million claim against the state.
Renée Rose Levy de Levi also abandoned her attempt to annul an ICSID award in favour of Peru (represented by Sidley) over family investments in the banking sector, even paying the state US$600,000 to cover the costs of the arbitration.The firm has also had good wins for Trinidad and Tobago’s national oil company Petrotrin, in ICC and LCIA cases.
A tribunal declined jurisdiction over US tobacco group Philip Morris’s claim Australia in the “plain packaging” dispute, finding that the company’s Hong Kong subsidiary had only acquired an interest in the company’s Australian business to bring the claim.
The firm’s track record for other investment treaty claims was also mixed in 2015: while the firm failed to convince an ICSID committee to annul a US$786,000 award in favour of Chinese national Tza Yap Shum, it did bring home a win for Peru’s largest natural gas project Perupetro. In that dispute, an ICSID tribunal ordered investors to pay US$65 million to the state, resolving a dispute over export royalties.
Peru has now asked the firm to represent it in a new US$400 million claim filed against it by Canadian mining company Bear Creek over the revocation of rights to a silver mine.
Sidley Austin also secured noteable victories in enforcement proceedings against Belize, with two US courts rejecting the state’s arguments against the enforcement of LCIA awards.
In 2015, the firm received a raft of new instructions, including one from Russian businessman Mikhail Abyzov in a US$500 million dispute against Russian oligarch Viktor Vekselberg and his company, the Renova Group. It continues to act for Russian energy company Atomstroyexport in €1 billion ICC claim relating to the termination of a nuclear power plant in Bulgaria.
Following past successes, the firm also continues to represent Costa Rica in two consolidated DR-CAFTA cases over environmental measures taken by the state to protect the nesting sites of endangered leatherback sea turtles.
At a time of change in the Geneva market, its practice in the city continues to thrive and has participated in nine hearings since the last edition.
With reference to the Tajikistan cases, William Spiegelberger, head of the international practice unit at Rusal in Moscow, says: “Cross-examination at the hearing was particularly accomplished, and stood in marked contrast to what opposing counsel was able to do.” He describes the team as “cost-effective” compared to the opponents and praises Marc Palay, Dorothee Schramm and their team for their affability and ability to work together.
Kevin Fillip, associate general counsel of STMicroelectronics, similarly notes the firm’s skill in cross-examination and says that Palay’s leadership was “superb”, while Natalia Artamonova of Atomstroyexport calls him “brilliant.”
Konstantin Kryazhevskikh, general counsel at Rusatom, says that the firm was efficient in preparing for the proceedings and its fees much less than those charged by lawyers to the other side, White & Case.
Efraín Laureano, senior development expert at Mongolia Business Plus Initiative (part of the United States Agency for International Development) says: “We value Sidley Austin’s professionalism, effectiveness and commitment to support Mongolia in the drafting of the new arbitration law.”
Arbitrator Gerald Aksen says: “Sidley Austin performed superbly and are a first class group of lawyers. Each was well prepared and their ability to handle cross-examination of witnesses was outstanding.”
He was particularly impressed with the ability of Benno Kimmelman and Dana MacGrath to communicate their client’s cause “with directness and clarity.”