Acting in a high-stakes case against the UK government
| People in Who’s Who Legal | 1 |
|---|---|
| Pending cases as counsel | 18 |
| Value of pending counsel work | US$4.5 billion |
| Treaty cases | 1 |
| Current arbitrator appointments | 20 (of which 7 are as sole or chair) |
| Lawyers sitting as arbitrator | 3 |
Fried Frank’s arbitration practice began to take shape in Washington, DC, in the early 1990s, but it was three wins at the turn of the decade that made it a fixture within the firm.
In one case, the firm obtained an award for specific performance for a major multinational oil company in an UNCITRAL claim against its Turkish joint venture partner, and later an award for breach of oral contract. In another, the firm successfully defended the United Nations in an UNCITRAL claim brought by a Canadian company. It also defended a major European aerospace company in a patent infringement arbitration brought by a large US multinational.
The lawyers that worked on those cases – Elliot Polebaum, Douglas Baruch and Joseph LoBue – remain at the core of the international arbitration team. Polebaum is the practice head and splits his time between the US and Paris.
More recently, the arbitration practice has expanded to include offices in Europe but shut down offices in Asia.
The group’s experience to date is in international commercial arbitration rather than investment cases. Several members of the firm also sit as arbitrators in commercial cases.
Network
As well as teams in the US and Paris, Fried Frank has a London team which covers Russia-related work. The firm closed its Singapore and Hong Kong offices in 2015, prompting the departure of a team headed by partner Alfred Wu to Norton Rose Fulbright. Partner Huen Wong, who was chair of the HKIAC until 2013, remains at the firm, splitting his time between Shanghai and Hong Kong.
Who uses it?
Clients include Chevron, Total, France Télécom, Thales, General Electric, Dassault Aviation, Hawker Beechcraft, Oranto Petroleum, Russian aluminium producer Rusal, and Turkey’s Setkom. The firm recently acted for Pavel Durov, the man behind “the Russian Facebook” VKontakte, in a shareholder dispute.
Philip Nunn in Hong Kong was among the counsel representing the Democratic Republic of the Congo in landmark proceedings in the Hong Kong courts relating to enforcement of ICC awards held by US distressed debt fund FG Hemisphere.
Track record
The firm helped French aerospace company Thales Alenia Space defeat a €358 million AAA/ICDR claim over a satellite contract in 2012. A tribunal dismissed the claim filed by US’s Globalstar and awarded Thales €53 million in cancellation charges.
It secured another good result for West African petroleum company Oranto in an ICC arbitration over terminated rights for an offshore oil block in Sierra Leone. After the firm filed its statement of claim and supporting evidence, the state capitulated and agreed to restore Oranto’s rights in the block.
Fried Frank also defended Hawker Beechcraft in an ICC claim brought by Airbus UK – limiting the client’s liability to £6.65 million, substantially less than the £40 million Airbus had claimed.
TNK-BP, the joint venture between BP and Russia’s Alfa-Access-Renova consortium, instructed Fried Frank to represent it in claims against BP and its directors following BP’s aborted attempt to enter into a joint venture with Rosneft to explore and extract oil from the Arctic shelf off the coast of Russia. The claims were dropped as part of a US$325 million settlement in 2012.
Recent events
The firm has been defending Cerner, a Kansas-based healthcare technology company, in a high-stakes arbitration brought by the UK government regarding an IT project for the UK’s National Health Service – thought to be the country’s largest-ever public procurement project. Cerner is a subcontractor to the main respondent in the case, Japan’s Fujitsu. The case has led to a parliamentary inquiry in the UK into the government’s handling of the dispute.
Fried Frank continues to act for French oil company Total in an ICSID claim against Uganda over the imposition of duties. A tribunal is in place, but proceedings are currently suspended.
In January 2016, special counsel Eugene Hansen left the Washington, DC, office to join the US Department of Justice.
Client comment
Christine Guerrier, in-house counsel for French aerospace company Thales Group, says that when the opposing side wanted a fast-track arbitration, Fried Frank was able to grasp difficult issues quickly and “smartly negotiate the time necessary to prepare the counterclaim”.
She commends the firm for its teamwork, pointing out that Elliot Polebaum allowed the younger associates on the team to perform cross-examinations.
Marc Borello, general counsel at Thales Alenia Space, says a group led by Polebaum was able to convince an ICDR tribunal to dismiss all claims against the company, while accepting its counterclaim – calling its work “remarkable”.
A French client says the team has expertise, the ability to listen and a sensible approach to business. Polebaum’s fluency in French counts for a lot, the client said.