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Crowell & Moring

18 February 2016

The year brought an Energy Charter Treaty win against Mongolia

People in Who’s Who Legal 1
Pending cases as counsel 14
Value of pending counsel work US$1.6 billion
Treaty cases 4
Current arbitrator appointments 37 (of which 33 are
as sole or chair)
Lawyers sitting as arbitrator 1

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 some 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 moved to Jones Day. These days, the group is co-chaired by Ian Laird – a Canadian with NAFTA experience who was part of Ali’s ex-Fulbright team – and a stalwart of the firm, George Ruttinger. A more recent arrival to the partnership is English lawyer Adrian Jones, who joined from Fasken Martineau in 2014 and has experience in oil and gas, mining and financial services disputes.

While the practice may not enjoy the same 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 the Dominican Republic, Egypt, Turkey and Lithuania.

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

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

Track record

The firm’s most impressive recent result was helping Khan win a US$100 million Energy Charter Treaty award against Mongolia in 2015 over the cancellation of uranium mining licences. The award is now the subject of French set-aside proceedings and enforcement proceedings in the US.

In a jurisdictional win, the firm persuaded an ICSID panel hearing Pac Rim’s case against El Salvador to allowed claims worth US$300 million to proceed under that country’s foreign investment law, while throwing out claims under DR-CAFTA. A final award is pending.

There have been mixed results in other ICSID cases. An US$833 million claim against Egypt that the firm had brought on behalf of a hotel investor was thrown out in 2014. Another client, a Dutch real estate developer, had its case against Turkey dismissed in the same year. In 2013, the firm helped an Italian wine manufacturer win on liability in a claim against Lithuania but without securing any damages.

The firm has had better luck on the enforcement side of things. In 2012, it helped the US’s 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

The Khan win was the most significant result of 2015, though it was overshadowed by tragedy when Khan CEO and well-known Canadian financier Jim Doak was found dead in Mongolia a day after meeting with government officials to discuss payment of the award. An autopsy later established that he died of natural causes.

The firm said goodbye to senior counsel Stephen Diaz Gavin, who left after a year with the firm to set up his own boutique in Washington, DC.

Client comment

Michael Ballantine, a real estate developer who is using the firm for an investment dispute with the Dominican Republic, calls the team “excellent, helpful, smart and professional”, and describes Ian Laird in particular as “kind and brilliant”.

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