The practice enjoyed another triumphant year – securing a billion-dollar settlement for bondholders against Argentina
|People in Who’s Who Legal:||15|
|Pending cases as counsel:||325|
|Value of pending counsel work:||US$86 billion|
|Current arbitrator appointments:||50 (of which 26 are as sole or chair)|
|Lawyers sitting as arbitrator:||22|
White & Case has regularly appeared in the top two or three of the GAR 30 table since the first edition. Last year, it took the number-one spot for the first time. Like Freshfields Bruckhaus Deringer, the firm has “big names”, lots of offices and a history as a pioneer in this area.
Unlike Freshfields, and unlike several other leading international arbitration practices, White & Case is looking much the same in terms of personnel as it always has. It hasn’t suffered any major defections to new entrants recently. As such, it’s shining rather more than usual. So how did it get to this enviable position?
White & Case was one of the first US law firms to do extensive work overseas. During the First World War, it handled all the legal work for the supply of munitions to Britain and France (France made founding partner Justin DuPratt White a Knight of the Legion of Honour in gratitude). Today’s international arbitration practice can be seen as growing from those origins. As a result of its early foreign work, international disputes began to arrive on its doorstep. In the 1950s, it worked on the famous Saudi Arabia v Aramco dispute (a young associate named Stephen Schwebel took part). This was followed by other cases.
In the 1970s, things kicked off after one Charles N Brower (today a renowned international arbitrator) founded an office in Washington, DC, leading to early ICSID work (the firm worked on one in three of the early ICSID cases, and has now worked on more than 100 cases there). Indeed, the practice has proved a particular pioneer in investor-state work. Its credits include:
- the first ICSID case against a Latin American state (Santa Elena v Costa Rica);
- one of the largest ICSID awards on record (US$877 million in CSOB v Slovakia);
- defending the first Energy Charter Treaty case (AES v Hungary) and the first ECT case to reach a merits award (Plama v Bulgaria); and
- bringing one of the earliest NAFTA cases (Mondev v United States).
The practice now offers more than 160 lawyers working around the globe (including a number of spots where rivals aren’t on the ground).
Though a lot of work is for sovereigns, there are some niche areas associated with particular offices. In Paris and London, there’s a heavy focus on project and construction work. Christopher Seppälä in Paris is long-standing legal adviser to the International Federation of Consulting Engineers (FIDIC), and Phillip Capper in London is also revered on construction matters.
Meanwhile, in Mexico City and Washington, DC, areas of special interest are investor-state work and Latin America. Jonathan Hamilton, a partner in DC, edits a website on Latin American arbitration law.
Rivals will occasionally suggest it’s a bit peculiar that White & Case offices seem to have a narrow focus, adding that they “don’t see them in the market” as a competitor in the way they see some of the other practices in this book. But that is a discussion for another day. Few would dispute that White & Case is a formidable opponent whatever the type of arbitration. And there’s some evidence that individual White & Case offices are broadening their sphere of activity. Paris now spends a lot of time on energy work, thanks to Michael Polkinghorne, while London (aided by other relevant offices) is building a name in Russia-related work, thanks to David Goldberg.
It’s also worth noting that, of the top practices, White & Case is one of the least male-dominated: senior female partners include Carolyn Lamm (a recent past president of the American Bar Association), Abby Cohen Smutny, Andrea Menaker and Ank Santens.
Of the firm’s 40 offices, 20 are home to international arbitration names. As well as the usual centres – London, Paris, New York, DC, Stockholm, Hong Kong and Singapore – the list includes Mexico City, Miami, Frankfurt and Moscow. The practice also now has a presence in Geneva and Seoul (see “Recent events”).
Who uses it?
Or reuses it. White & Case is blessed with a list full of clients that return. That’s partly down to working for so many states, as they tend to be loyal. But, still, it’s a useful quality to have.
Some regular government clients are Bulgaria, the Philippines, Peru, Uzbekistan and Georgia, as well as various Ukrainian state entities including Naftogaz. Russia is using it to help resist enforcement of the US$50 billion Yukos awards in the United States. On the corporate side, it’s done work for Hochtief, Alstom, Eni, Hong Kong’s Hutchison Port Holdings and India’s Jindal Steel & Power, among many others.
In recent years, the practice has picked up more of a following in Eastern Europe and Latin America, including one of the world’s richest individuals (in eastern Europe) for whom it was conducting a monumental dispute (now settled). The practice is also very popular with big construction firms. In that realm, clients have it acting on one of the world’s largest current disputes (about a next-generation nuclear reactor) as well as on some of the bigger issues arising from the project to enlarge the Panama Canal.
Some of its “greatest hits” were mentioned above. As those would indicate, White & Case has a reputation around the market as a fearsome and creative opponent. In fact, in ICSID work, a survey by Credibility International (a damages consulting firm) recently assessed White & Case as the “winningest” law firm at ICSID. Although the survey can be critiqued (a couple of firms from eastern Europe do surprisingly well in its methodology), White & Case’s record is hard to argue with.
Looking at the recent past, big White & Case wins include:
- establishing jurisdiction for tens of thousands of Italian bondholders to bring a collective ICSID claim against Argentina (the famous Abaclat case), eventually securing them a US$1.35 billion settlement;
- a US$740 million ICSID win for Canadian mining company Gold Reserve against Venezuela;
- helping the Philippines triumph in a long-running ICSID dispute over an airport terminal, by having the case thrown out twice;
- winning the complete dismissal of a €322 million ICSID claim against Hungary over a lakeside casino resort that never got built;
- helping Commisimpex, a Lebanese-owned company, win US$550 million against the Republic of Congo (and defending the award against corruption allegations in the French courts);
- the first dismissal of a treaty claim at ICSID because of corruption (Metal-Tech v Uzbekistan);
- a US$40 million win for SGS against Paraguay thanks to a treaty’s “umbrella clause” (the company had failed in two similar cases against Pakistan and the Philippines, using other counsel); and
- helping Peru to bring the first ICSID case by a Latin American state, part of a larger dispute that ended with a US$40 million payout to the government.
As already mentioned, the firm successfully settled the Abaclat bond claim in early 2016 for around US$1.35 billion after reaching a deal with Argentina’s recently elected conservative government under Mauricio Macri. The claimants had been seeking around US$2.5 billion. White & Case had already helped the case clear the jurisdictional phase in 2011 – establishing that investment treaty tribunals can in principle hear sovereign debt claims brought by tens of thousands of claimants in a single proceeding.
Another spectacular victory came in late 2015, when the firm helped Uzbekistan knock out the bulk of a US$1.3 billion bet-the-company claim by London-listed miner Oxus Gold. An UNCITRAL tribunal awarded the investor just US$10 million plus interest, leading Oxus to suspend trading of its shares. Oxus’s chairman said he was “devastated” by the result.
White & Case lawyers helped South Korea’s SK Engineering and Siemens lay to rest a long-running dispute with Mexican state oil company Pemex over the costs of a refinery upgrade. Pemex reportedly agreed to pay SK and Siemens US$295 million to satisfy an ICC award that White & Case had obtained against it in a decade-long arbitration. The dispute had also triggered US enforcement proceedings and an abortive racketeering lawsuit by Pemex.
The government of Peru retained the firm again to defend it against a US$1.3 billion treaty claim by a US hedge fund that invested in bonds issued as compensation for the seizure of farmland nearly 50 years ago.
The firm meanwhile continued to aid Russia in its efforts to resist enforcement of the US$50 billion Energy Charter Treaty award in favour of former majority shareholders in Yukos Oil Company. The US enforcement proceedings took an unusual turn when district judge Amy Berman Jackson recused herself from hearing the case on the basis of alleged “cumulative connections” with White & Case partner Carolyn Lamm – including at one time being mothers to children at the same school.
On the personnel side, the most significant development in 2015 was the arrival of Anne-Veronique Schlaepfer and her team from Schellenberg Witmer in Geneva. giving the practice its first arbitration partner in Switzerland. Schlaepfer, who also co-chairs the International Bar Association’s arbitration committee, brought with her Alexandre Mazuranic, a senior associate at Schellenberg who joined as counsel, and associate Steven Holder.
In London, the firm recruited Brazilian practitioner Luiz Aboim as counsel from Freshfields Bruckhaus Deringer, boosting its capability in Latin America and the Portuguese-speaking world.
Asia has been a recent area of focus too. The firm opened an office in Seoul in 2015, relocating partner Mark Goodrich there from the London construction practice. Partner Matthew Secomb meanwhile moved to the Singapore office from Paris.
There were a couple of departures too. London partner Charlie Lightfoot left the firm after 16 years to lead the London arbitration and litigation practice at US firm Jenner & Block. Paweł Pietkiewicz, head of litigation and arbitration at White & Case in Poland, left the firm to lead Greenberg Traurig’s new disputes group in Warsaw. Local partner Michael Subocz has taken over Pietkiewicz’s role.
Ivan Kondov from Bulgaria’s Ministry of Finance says he’s used White & Case on “the eight most important international arbitration matters involving Bulgaria in the last 10 years”. In all of those he was impressed by the firm’s “good strategic judgement, strong argumentation and diligent approach to every matter”. The firm is “simply the best [we] have worked with”, he adds.
Doug Belanger of Gold Reserve interviewed six firms before selecting White & Case for its hard-fought expropriation claim against Venezuela. “What they promised,” says Belanger, “is what they delivered.” In particular, their level of professionalism “was unparalleled in my 40-plus years of experience dealing with the legal profession”.He adds: “The completeness of the prosecution of the case for us was superb from the beginning to the end… They argued the case as if they were the client.”
Belanger estimates the company spent “over US$20 million” to received an award of US$740 million, “which is one of the largest ICSID arbitral awards in history”. He concludes: “To say we were pleased would be an understatement.”
Pericles Stroubos, senior legal counsel at Aegean Motorway, appointed White & Case because he wanted “one of the best legal firms in construction arbitration.” He was duly impressed, and says that the “level of detail in their work” was particularly striking. “Nothing was left unchallenged, unattended or not discussed.”
The White & Case team also “tried really hard to involve all interested parties in the whole process – legal counsels of the firms, other external lawyers, experts, etc” and so find “the best common ground”.
Stroubos says he would “definitely” recommend the practice to a friend “without the slightest hesitation”.