The multiple mergers of past years have knitted together nicely
|People in Who’s Who Legal:||8|
|Pending cases as counsel:||400|
|Value of pending counsel work:||US$45 billion|
|Current arbitrator appointments:||51 (of which 34 are as sole or chair)|
|Lawyers sitting as arbitrator:||20|
The product of a series of mergers since 2009, the practice brings together former lawyers from Norton Rose, Fulbright & Jaworski and Ogilvy Renault (which all used to feature in the GAR 100 in their own right) under global co-heads Pierre Bienvenu in Montreal and Mark Baker.
Of the three main merger partners, Norton Rose was perhaps the least well known for international arbitration, though its deep roots in shipping, energy and construction had brought it success in the field since the 1990s and it counted leading UK arbitrator Michael Lee among its alumni.
Its merger with Ogilvy Renault, Canada’s pre-eminent arbitration practice, in 2009, took things to a new level, adding specialists who had learned the trade from leading arbitrator Yves Fortier QC (though Fortier himself would soon leave for independent practice to avoid conflicts of interest). Bienvenu was among them and was made practice co-head with the former group head at Norton Rose, Joe Tirado (who left for Winston & Strawn in 2012).
The merger with Fulbright & Jaworski in 2013 completed the development of an international arbitration supergroup. Fulbright was among the first US firms to gain a name in the field, having worked on cases such as Sibneft v Yukos (once the largest arbitration in the world), and the first to treat it as a practice area in its own right.
It contributed Baker – a replacement co-head of practice – plus other big names such as Kevin O’Gorman and Deborah Ruff.
Along the way, another Canadian firm, Macleod Dixon, was added to the mix in 2012 bringing capability in Latin America in particular. So too were firms in Australia and South Africa.
There are recognised international arbitration specialists in London, Paris, Frankfurt, the United States, Canada, Australia and South Africa. The Macleod Dixon merger brought an office in Caracas, where partner Elisabeth Eljuri has a niche in energy-related dispute work.
Guy Spooner heads the well-regarded Asia team from Singapore, and the firm also has a presence in Hong Kong and Moscow.
Who uses it?
The new firm is a sum of its parts, so clients include a lot of Canadian blue-chips and mining companies, City of London financial institutions, construction firms, shipyards, energy businesses, and oil and gas service providers – to name just a few.
Some names with which members of the practice have been associated include AbitibiBowater, Bombadier, BP, Bank of Nova Scotia, Nestlé, Foster Wheeler, Norsk Hydro, BHP Billiton, WADA, Canadian-Pacific Railways and the government of Kazakhstan.
The individual components of the merged firm all arrived with their own reel of highlights. In Ogilvy Renault’s case, the team secured the largest payment so far in a NAFTA case (a US$130 million settlement for AbitibiBowater, ending a claim against Canada) and a US$85 million award against Hungary at ICSID in 2005 (one of the largest of its time).
In an ICSID case in 2012, the Macleod Dixon team helped a subsidiary of the United States’ Exterran Holdings agree a US$442 million settlement with Venezuela’s state oil company, PDVSA, in compensation for nationalised gas compression assets.
The Fulbright team has had successes on behalf of an industrial boiler maker in a dispute with a former Chinese licensee – and is now launching a third wave of claims in the dispute having secured a wordwide injunction for the client. It’s also enjoyed some success persuading a Latin American government to back down from proposed tax changes.
The combined group continues to bring in big and interesting work. For example, it’s working on one of the biggest disputes to arise out of the Arab Spring – also involving Baker Botts, Shearman & Sterling and Freshfields – and for an oil-rich central European government in a billion-dollar Energy Charter Treaty dispute.
In 2014, the firm promoted partners including Simon Ramsden in London, Brian Boyle and Matt Dekovich in Houston, Eric Herzog in Los Angeles, Kyle Kashuba and Joshua Sadovnick in Calgary and Toby Biddle in Sydney. In Ottawa, Bienvenu’s protégé Alison Fitzgerald was made counsel.
In New York, partner Aníbal Sabater left the firm to join New York boutique Chaffetz Lindsey at the start of 2015.
The firm was instructed in recognition and enforcement proceedings in DC and Paris by Canadian miner Gold Reserve, which seeks to make good a US$740 million ICSID award against Venezuela.
It also continues to represent Luxembourg’s Invista in a dispute with a Chinese petrochemical company, after a Chinese court ruled that the case could go ahead under a hybrid arbitration clause (providing for arbitration at CIETAC under the UNCITRAL rules). The firm relies on local co-counsel from Chinese firm Zhong Lun.
Martin Valasek in Montreal (originally of Ogilvy Renault) was assistant to the Fortier-chaired tribunal that ordered Russia to pay US$50 billion to former majority shareholders in Yukos for the politically motivated expropriation of the oil company.
Along with Belgian arbitrator Bernard Hanotiau, Bienvenu helped steer a two-year review process that led to the revised IBA Guidelines on Conflicts of Interestin International Arbitration, unveiled at the IBA conference in Tokyo in late 2014.
Meanwhile, Frankfurt-based partner Patricia Nacimiento joined the executive board of a new non-profit association to promote the benefits of investor-state arbitration and influence EU policy in this area: the European Federation for Investment Law and Arbitration (EFILA).
Darius Chan in Singapore was appointed to a new leadership committee for the SIAC’s under-40 group, while Donald Dinnie in Cape Town became a vice-chair of the International Bar Association’s arbitration committee for 2015. And Christopher de Waas in Melbourne became secretary of the Asia–Pacific Forum for International Arbitration, replacing his Norton Rose Fulbright colleague Peter Anagnostou.
Kieren Barry, group counsel at Mandarin Oriental Hotel Group, used the firm in an arbitration that was worth several million pounds, but was more important as far as the group’s reputation was concerned. He says Norton Rose Fulbright’s “excellent preparation was decisive and gave a massive advantage”.
With the caveat that the fees were on the high side, Barry adds: “Norton Rose Fulbright were very impressive in terms of planning overall strategy, documents and evidential support, reference bundles and software. They also recommended and arranged for all witnesses to receive independent training on what to expect, so that their testimony was credible, calm, to the point and thus ultimately persuasive to the tribunal.”
Steve Sutton, a consultant at Salvadoran company Cenergica, used Mark Baker in a case that had potential to have an “extreme impact” on his company – against a team at the former arbitration powerhouse Coudert Brothers. Sutton recalls Baker performed all of the cross-examination in a thorough manner that “mitigated, if not eliminated” the other sides’ claims. “He was precise in directing the tribunal to the root cause of the dispute and efficiently demonstrated how the parties had dealt with the related concerns. I would, I have and I will continue to recommend Mark Baker and his team,” he says.
Meanwhile, one state client praises the Norton Rose Fulbright team that persuaded its organs to appoint a new set of financial experts in one very time-pressured case, despite a lack of political will to do so. The report prepared by the new experts was more robust and reasoned and ultimately affected the hearings and award, which was only a tenth of the amount claimed. The client singles out lead counsel Nacimiento as particularly skilled, noting she was able to build a “client-consultant relationship not only based on professional competence, but also on ties of friendship and trust”.
International arbitration is most effectively handled by a team with global reach and a broad base of experience and language skills.
We have 70 arbitration partners who lead teams in key arbitration centres including Dubai, Frankfurt, Hong Kong, Houston, London, New York, Paris and Singapore. This makes us one of the very few legal practices with the skills and resources to assist clients from the outset of a dispute through to enforcement of an award wherever in the world the dispute arises, whatever the seat, whatever the governing law, wherever it needs to be enforced and whichever industry it concerns. We are currently running international arbitration disputes with an aggregate value running into tens of billions of dollars. Many of our practitioners sit as members of arbitral tribunals.
We are instructed by major corporations, global financial institutions and government and state-owned entities from a broad range of industry sectors, including energy; infrastructure, mining and commodities; transport; technology; and banking. These clients turn to us for assistance on their most sensitive, high-value and strategically important arbitrations.
We handle all types of institutional and ad hoc commercial arbitration, including arbitrations conducted under the rules of UNCITRAL, the International Chamber of Commerce, the American Arbitration Association, the International Centre for Dispute Resolution, the London Court of International Arbitration, the Singapore International Arbitration Centre, the China International Economic and Trade Arbitration Commission, the Dubai International Arbitration Centre, the Hong Kong International Arbitration Centre, the Houston Maritime Arbitrators Association, and the Stockholm Chamber of Commerce.
We work closely with our clients to determine and achieve their commercial objectives in a quick and cost-effective manner. We advise on all aspects of arbitration, from drafting suitable clauses to advising on the type and seat of arbitration, the formation of the tribunal, arbitral procedure and enforcement of the award. We are skilled advocates in many languages. We also give advice and assist in conducting all forms of alternative dispute resolution, including mediation, adjudication and expert determination.