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GAR 100 - 9th Edition

Wilmer Cutler Pickering Hale and Dorr

18 February 2016

Gary Born assumed the presidency of SIAC, as the firm continued its defence of Kurdistan

People in Who’s Who Legal: 7
Pending cases as counsel: 83
Value of pending counsel work: US$107.3 billion
Treaty cases: 19
Current arbitrator appointments: 63 (of which 30 are as sole or chair)
Lawyers sitting as arbitrator: 6

This US-based firm’s international arbitration group developed from legacy firm Wilmer Cutler and Pickering’s emphasis on international matters. In the 1980s, Lloyd Cutler – the famous name partner – agreed that he and colleagues should represent Greenpeace in arbitration against France over the bombing of the organisation’s flagship, the Rainbow Warrior. Ten years later, the firm went on to represent Eritrea against Yemen in an arbitration in The Hague.

In both matters, Gary Born, then an up-and-coming member of the firm and former clerk to US Supreme Court Justice William Rehnquist, led the work, beginning a long focus on international arbitration (which he had already written learned books on).

The group formed in London, fuelled by commercial work, most notably a pair of sizeable ICC instructions from Deutsche Telekom. The office became home to a mix of common and civil law specialists – and was one of the first shops in London to have a civil-law trained partner (Austrian Franz Schwarz) on site. Today it has one of the better foreign-lawyer and intern programmes, fuelling this mix. Its advocacy reflects this – a blend of the continental and US traditions.

Later openings came in the United States and Germany. By now the firm was Wilmer Cutler Pickering Hale and Dorr, having merged with US firm Hale and Dorr in 2004.

The firm is unusual in how long the original team has remained intact, though long-term partner Wendy Miles left for US disputes boutique Boies Schiller & Flexner in 2014 after 15 years with the group.

Born is still a key figure – though some of his attention is these days directed at the Singapore International Arbitration Centre, whose presidency he assumed in 2015.

The day-to-day leadership of the practice has now passed to two vice chairs: Schwarz and Rachael Kent.

Network

The key offices for international arbitration are London, New York, Frankfurt and Washington, DC, with others in Palo Alto and Boston.

Who uses it?

WilmerHale is a practice that has a fair few regular clients – and a policy of not confirming them, which explains the brevity of this section.

Clients of public record include Volkswagen (in a multibillion-dollar dispute with Suzuki), Repsol, Switzerland’s Swatch, Deutsche Telekom and Austrian technology group Andritz. The group tends to focus on higher-value work, which in recent years has meant plenty of price-reopener energy disputes.

In the investment law area (in which it is not so famous), the practice is acting for US pharmaceutical group Merck Sharp & Dohme in a denial of justice claim against Ecuador.

It’s also known for taking on non-traditional, non-commercial cases, for example representing the Sudan People’s Liberation Movement (a former rebel force) in a dispute with the government in Khartoum over the boundaries of an oil-rich region of central Sudan. The dispute helped determine who could participate in a referendum on Abyei’s future and thus paved the way for South Sudan’s independence, although it sadly has not brought peace to the region.

Another prominent client is the Kurdistan regional government of Iraq, which it is defending in a mammoth LCIA case over gas fields.

Track record

Famously good. The firm had a series of wins for Deutsche Telekom in the Vivendi matter mentioned above. Although the saga ended, eventually, in settlement, for the 10 years while it was going on, the German client was regarded as firmly ahead.

The firm pulled off a similar trick for France Télécom in the early 2000s, with Freshfields as opposing counsel.

After the result was handed down in the Abyei arbitration, the firm’s clients reportedly broke into song, they were so pleased. Luka Biong Deng, Sudan’s then minister for cabinet affairs, later said the firm’s work was “extraordinary in every way”.

More recently, the firm won a whopping award worth US$450 million in 2014 for Swiss watchmaker Swatch in a dispute with US jeweller Tiffany & Co before the Netherlands Arbitration Institute. The tribunal also awarded Swatch almost US$10 million towards its legal fees and costs. (However, the award has since been set aside in the Dutch courts).

Recent events

Gary Born took over the presidency of SIAC from Michael Pryles and is overseeing a series of initiatives, including the formation of a new users’ council and the release of a draft of new investment arbitration rules for the centre.

Meanwhile his arbitrator work saw him preside on an ICSID panel that threw out the first claim against Papua New Guinea brought under its investment promotion statute; and on an ICC panel that rejected a US$100 million claim against state entity PetroVietnam.

In early 2016, WilmerHale promoted Latin American disputes specialist Claudio Salas to special counsel, while eight other arbitration counsel were made up in London, Frankfurt and New York.

Counsel Suzanne Spears left the firm in 2015 after eight years in the London office and later joined Volterra Fietta.

There were setbacks in the firm’s defence of Kurdistan in November 2015, when an LCIA tribunal ordered the regional government to pay US$1.98 billion to UAE companies Dana Gas and Crescent Petroleum and their subsidiary Pearl Petroleum, to cover outstanding invoices for gas products. The firm also failed to prevent enforcement of an order by the same tribunal that Kurdistan should pay US$100 million within 30 days, after the High Court in London rejected the government’s arguments that it should be excused payment based on sovereign immunity and the strain of its refugee crisis and military confrontation with ISIS.

In August 2015, an ICC tribunal in London ordered WilmerHale’s client Volkswagen to sell its US$3.8 billion stake in Suzuki Motor Corporation back to the Japanese carmaker, though it also partly upheld claims that Suzuki had breached a partnership agreement. A damages phase continues.

The firm also helped Austria’s Andritz receive €40 million in a settlement with the Finnish-Chilean owners of Uruguay’s largest pulp mill project, Montes del Plata. The client had initially sought €200 million in an ICC claim under contracts for the delivery and installation of major equipment for the project. (WilmerHale teamed up with Kilpatrick Townsend & Stockton and GAR 100 firm Ferrere in Uruguay for the case.)

Client comment

Alan Crain, chief legal and governance officer at oilfield servicer Baker Hughes, calls the firm “truly masterful.”

“The Wilmer team exercised excellent judgement throughout the proceedings with respect to not calling certain fact and expert witnesses, reducing the planned cross examinations and adjusting to changes in adverse counsel’s assertions,” he says.

In particular he noted that Gary Born understood arbitrators’ considerations and fashioned his arguments accordingly. “There is no one better. He forms the best team and the results speak for themselves.”

James Heavner, director of litigation at financial services group The Hartford, says WilmerHale “simply out-lawyered the other side” when they were retained in a dispute. “The Wilmer team thought the case through, from start to finish, left no exposed flanks, and was prepared for every argument the other side could muster.”

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