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Crowell & Moring

11 February 2015

Back in the GAR 100

People in Who’s Who Legal: 1
Pending cases as counsel: 12
Value of pending counsel work: US$2.6 billion
Treaty cases: 6
Current arbitrator appointments: 9 (of which 5 are as sole or chair)
Lawyers sitting as arbitrator: 2

Crowell & Moring’s international arbitration practice was established in 2005 as an offshoot of its Washington, DC-based litigation practice. The group really took off in 2007 with the hire of a ready-made team from Fulbright & Jaworski, including Arif Hyder Ali, who became practice chair. It rapidly took on a number of weighty ICSID and commercial matters, and earned a place in every edition of the GAR 100 from 2008 until 2012.

In that year, Ali and three other partners left for Weil Gotshal & Manges, while another partner, Baiju Vasani, moved to Jones Day. Since then, the group has been steered by George Ruttinger and Ian Laird, both based in DC. Laird, a Canadian who was promoted to partner in 2013, was a member of Ali’s ex-Fulbright team, and has particular expertise in NAFTA claims. More recently, the firm recruited English lawyer Adrian Jones from Fasken Martineau in London, who brings experience in oil and gas, mining and financial services disputes.

While the practice may not enjoy the same public profile as before, it’s still acting on some significant investor-state cases, including a mining claim against El Salvador that has triggered NGO protests outside the World Bank.

Network

Most of the international arbitration team is based in DC, with others in New York, London and Brussels. The firm also has offices in Cairo and Riyadh.

Who uses it?

Canadian mining companies are among the firm’s clients in investor-state work: it’s acting for Pacific Rim in the claim against El Salvador; and Khan Resources in a case against Mongolia. Other investors have used it in claims against Egypt, Turkey and Lithuania.

On the commercial side, its clients include lifestyle products company Philips, luxury goods brand Hermès, beauty group L’Oréal, and hotelier Marriott International, as well as the likes of Alstom, Cern, JPMorganChase and Axa. Online retailers Amazon, Booking.com and Vistaprint have also used the firm in domain name disputes before the ICDR and the California-based internet regulator, ICANN. Bank of America and the United States’ Duke Energy have also turned to the firm for ICSID-related enforcement matters.

The firm has a reputation for a creative approach to alternative fee arrangements, which it has employed in its arbitration work.

Track record

While some of the firm’s investment cases are yet to reach a final award, the group has achieved some notable jurisdictional victories. In 2012, an ICSID panel hearing Pacific Rim’s claim against El Salvador allowed claims worth US$300 million to proceed under that country’s foreign investment law, while throwing out claims under DR-CAFTA. In the same year, the panel hearing Khan Resources’ US$358 million claim against Mongolia dismissed the state’s preliminary objections. A decision on the merits is pending in both cases.

There have been mixed results in other cases. In 2013, the firm helped Italian wine manufacturer Bosca win a ruling on liability in a treaty claim against Lithuania concerning the nullification of a tender – but the tribunal declined to award any damages. In the past year, the firm also saw the dismissal of two ICSID claims it had brought against Egypt and Turkey (see “Recent events”, below).

The firm has had better luck on the enforcement side of things. In 2012, it helped the United States’ Duke Energy win confirmation of an US$18 million ICSID award against Peru in the DC courts (an earlier incarnation of the Crowell practice acted in the original arbitration). The firm also helped Blue Ridge, a Bank of America subsidiary, in its efforts to enforce a US$133 million ICSID award against Argentina (acquired from the original claimant CMS Gas). Argentina eventually satisfied the award in 2013, as well as four other treaty awards, with payment of sovereign bonds worth US$500 million.

Recent events

Apart from the arrival of partner Adrian Jones from Fasken in London, Crowell also recruited senior counsel Stephen Diaz Gavin in DC. Diaz joined in July from Patton Boggs, ahead of that firm’s merger with Squire Sanders.

There were also some departures. Two counsel in the London office, Jane Wessel and Claire Stockford, left to become partners at Shepherd & Wedderburn in early 2015. The DC office also said goodbye to counsel Meriam Alrashid, who joined the partnership at Pinsent Masons.

There were some disappointing results in a pair of ICSID cases. In March 2014, a tribunal dismissed claims brought by Tulip, a Dutch real estate developer, against Turkey. A majority of the panel found that the actions of a Turkish real estate investment trust weren’t attributable to the state. Two months later, another client – US hospitality investor H&H Enterprises – had its US$833 million claim against Egypt thrown out; the tribunal in that case ruled that the claimant had triggered the treaty’s “fork in the road” provision by also pursuing domestic litigation and commercial arbitration remedies.

The year also saw Crowell instructed by a family of Christian missionaries for a potential DR-CAFTA claim against the Dominican Republic. The Ballantine family, who hail from the United States, are seeking US$20 million for the government’s refusal to approve the proposed expansion of a residential gated community. A notice of dispute was filed under the treaty in June 2014.

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