Arnold & Porter LLP

Arnold & Porter had another good year in 2010, recording three major victories in its strength of investment arbitration – for Chile, Panama and Hungary.

The current international arbitration practice evolved out of the firm’s long-standing reputation for trade and sovereign-debt work, which led the firm in the 1980s to represent several states in the public international law arena. For many years the arbitration work was led by the late William Rogers, a former undersecretary of state in President Ford’s administration. Later, Eli Whitney Debevoise and Jean Kalicki became the focus of work. In 2007 they were joined by a team of eight lawyers from another DC firm, led by Paolo Di Rosa. That team specialises in Latin American investment arbitration. The group has continued expanding since then through lateral hires.

Network

Although the firm is present in Europe, Arnold & Porter’s arbitration practice’s centre of gravity remains the US. In DC, three of the partners are native Spanish speakers. The practice recently gained a foothold in London: fluent Russian speaker Dmitri Evseev, who joined the DC office in 2009 from Winston & Strawn and was promoted to partner later that year, moved to the UK in November.

Who uses it?

The firm is perhaps best known for its investment arbitration work on behalf of states. Senior figures in the practice have said they had “an 80 per cent success rate” for those clients at ICSID. The figure stands out because on average respondent states have won at ICSID in only 30 per cent of cases. The firm is currently representing seven states in active proceedings including Guatemala, the Dominican Republic and Venezuela. Paolo Di Rosa, who heads the firm’s international arbitration practice, is acting for Chile in the longest running case at ICSID, brought by publisher Victor Pey Casado over an alleged Pinochet-era expropriation, as well as an unrelated claim by a Spanish fisheries company. Both cases have reached the annulment stage.

Big wins

Proving that there’s more to the practice than the Americas, the firm recently scored a notable victory on behalf of Hungary. Jean Kalicki defended it against two claims brought under the Energy Charter Treaty by European power providers. In September an ICSID tribunal found that Hungary did not breach the treaty when it imposed maximum price caps on electricity. The case raised a hot topic in international arbitration: the relationship between European Union competition law and investment protection. It was also the first investment arbitration to feature an amicus curiae submission by the European Commission.

In December, the firm successfully defeated Chile against a Spanish fishing company’s challenge to the result of an ICSID arbitration. The tribunal had dismissed the US$22 million claim, ruling it related to actions taken before Chile’s bilateral investment treaty with Spain had entered into force. The ad hoc annulment committee upheld the award and ordered the claimants to bear the full costs of the proceedings.
The firm also won full costs for Panama in the first-ever ICSID arbitration against the state. The case concerned a claim brought by US shareholders in a Panamanian energy company over taxation policy. In November the tribunal ruled that a tax exclusion clause in the treaty limited its jurisdiction to expropriation claims.

Recent events

In DC, Whitney Debevoise rejoined the firm after a three-year spell at the World Bank, while counsel Samuel Witten became the third lawyer in recent years to arrive from the US State Department. The firm strengthened its team in San Francisco with the hiring of counsel Maria Chedid, a fluent Arabic speaker with expertise in IP disputes. Kalicki says her personal highlights of the year include an appointment by ICSID to hear a pending case against Gambia, while Di Rosa mentions an appointment by the US as an arbitrator in a US$2 billion claim brought by a Mexican trucking association – the largest NAFTA claim ever filed.