Shearman & Sterling

Saw off a US$2 billion claim against an Egyptian state entity and celebrated another victory in the Yukos saga

Shearman & Sterling’s huge renown for international arbitration grew after its 2014 win against Russia for the former majority shareholders in Yukos Oil Company. The US$50 billion award remains the largest recorded win in an investment treaty dispute. The firm also won a record US$2.47 billion commercial award for Dow Chemical against a Kuwaiti state entity in 2012.

Its work in this field started in the mid-1980s, when Emmanuel Gaillard joined from Bredin Prat. Originally hired for litigation, Gaillard opted instead to focus on international arbitration, of which he’d done a little for Algeria’s Sonatrach. And so Shearman became one of the first firms with a bespoke international arbitration team (along with Gide Loyrette Nouel, Coudert Brothers and, soon, Freshfields).

The gamble paid off. In 1992, Gaillard landed two huge cases – a billion-dollar construction dispute and a set of eight arbitrations for the same energy firm. The burgeoning team then appeared on a series of seminal cases in the mid-to-late 1990s in the energy and construction areas and a (then new) discipline called investment arbitration.

In 1998, the team acted for a British investor against Egypt in Wena Hotels. It won US$20 million, defeating Freshfields. Wena is often described as the first significant ICSID case of the modern era.

A year later, Gaillard published Fouchard, Gaillard, Goldman on International Commercial Arbitration ­– at the time the most comprehensive volume available on the practice of arbitration, and still a seminal work.

Today, Gaillard is a totemic figure in the field, well known for his musings on the philosophical ideas underpinning international arbitration and its sociological significance. Over the years, other members of the team have gained recognition in their own right. Many have gone on to create arbitration boutiques or lead a practice – Eric Teynier, John Savage, Philippe Pinsolle and Todd Wetmore come to mind.

Others remain at the firm and have carved out niches. Yas Banifatemi, who joined in 1997, co-developed the firm’s investment arbitration practice and leads its public international law work.

The 2000s saw the practice cement its reputation in investment arbitration. It acted on the first cases involving serious argument about umbrella clauses (SGS v Pakistan and SGS v Philippines) and most-favoured-nation and denial-of-benefits clauses (Plama v Bulgaria).

Then, in 2003, Gaillard and Banifatemi landed the instruction in the Yukos case, which generated over US$70 million in fees. The case was quite a fight – taking eight years to reach a final hearing (five weeks in 2012) and nearly 10 years until the issuance of an award in 2014. Two years later, the shareholders found themselves back at square one when a court in The Hague set aside the award on jurisdictional grounds. The Hague Court of Appeal overturned that ruling in early 2020. (See “Recent events”.)

Network

The team in Paris is one of the largest collections of arbitration specialists under one roof, including 12 partners. The office enjoys the pick of the recruitment market and serves as a training ground for many who go on to great things.

Beginning in the late 1990s, the practice began to branch out from Paris, opening in London in 1999; various German cities in 2001; Singapore in 2002; Abu Dhabi in 2008; and, more recently, Hong Kong in 2015 and Beijing in 2017.

In 2003, it also created a Spanish-language and Latin America team run from Paris by Colombian partner Fernando Mantilla-Serrano. He left the firm for Latham & Watkins in 2014 but the focus on Latin American work continues, with a team of over 10 Spanish speakers now led out of London by partner Ximena Herrera.

The New York practice run by Henry Weisburg boosted its profile thanks to the Dow Chemical win. There is also a team in Washington, DC including partners Jonathan Greenblatt and Christopher Ryan.

Not all forays into new regions have worked. In 2013, following a restructuring that saw the firm’s three German offices consolidated, Richard Kreindler went to Cleary Gottlieb Steen & Hamilton, while others moved to Latham & Watkins. A Frankfurt office remains, with a team of four associates specialising in arbitration.

The firm began expanding its offering in Asia in 2015, recruiting Nils Eliasson to head a China disputes-focused practice from Hong Kong, and a team in Beijing led by Emmanuel Jacomy, a French-trained lawyer fluent in Mandarin. Partner Daryl Chew also leads a team in Singapore.

In the Middle East, there is a construction-focused team in Abu Dhabi led by Alex Bevan. The firm’s significant caseload relating to North Africa is mainly handled by the Paris team which includes lawyers fluent in English, Arabic, French and Portuguese.

Who uses it?

The most regular corporate clients include EDF, Sanofi, Thales, Dow Chemical Company, French logistics company Bolloré, Atlas Power, Groupe Casino, Spanish construction group OHL, Turkish construction firm Enka, private equity group Opportunity, Bechtel, Linde – and, of course, the Yukos majority shareholders.

A significant number of state-owned entities also rely on the firm, including Sonatrach and others in Algeria; EGAS and EGPC in Egypt; Angola’s Sonangol; the Bahrain Petroleum Company; Mubadala and others in the UAE; PetroVietnam; China’s Sinopec; Ecopetrol in Colombia; Chile’s ENAP; the Panama Canal Authority; and Staatsolie in Suriname.

State clients in the investment treaty arena include China, Algeria, Egypt, Croatia, Ukraine, Lithuania, Georgia and Panama. In the past it has also acted for Venezuela.

Track record

Shearman’s more noteworthy international arbitration successes have been mentioned in the history of the practice’s development above. Even more than Freshfields, the firm has earned a reputation as the place to go when defeat would be intolerable: the proverbial bet-the-company case.

A recent example was helping Algeria to defeat a US$4 billion ICSID claim brought by a company owned by the family of Egyptian billionaire Naguib Sawiris. A tribunal threw out the claim at the jurisdictional stage in 2017, describing it as an abuse of rights.

It has helped Sonatrach settle a number of disputes, including a pair of ICC arbitrations with France’s Total, one of which related to a US$400 million tax on “exceptional profits”; and a trio of cases against Italian contractor Saipem over projects allegedly procured through bribery.

The firm has handled a number of high-stakes matters for Egypt and its state-owned entities, including four politically sensitive arbitrations arising from a terminated deal to supply gas to Israel.

It secured the dismissal of a US$100 million claim brought against PetroVietnam by three international oil companies in relation to tax on an offshore concession.

It helped French client EDF defeat claims of more than €4.6 billion in an ICC arbitration brought by the German federal state of Baden-Württemberg, concerning the sale of a stake in a power company.

The firm also helped to settle a monumental ICC arbitration worth €6.1 billion between Areva, Siemens and Finnish utility TVO in 2018. Shearman’s client Areva agreed to pay €450 million for delays in the construction of a nuclear power plant.

It negotiated another settlement for Angolan state entity Sonangol, bringing to a halt a pair of ICC cases worth a combined US$2 billion that had been brought by distressed US energy company Cobalt.

Along with Freshfields, Shearman helped nine power producers win a US$130 million LCIA award against a Pakistani state-owned electricity company after persuading a sole arbitrator that the respondent had colluded in third-party litigation to thwart compliance with an expert determination.

Recent events

Shearman (together with Dutch firm De Brauw) advised the former majority shareholders in Yukos as they persuaded The Hague Court of Appeal to reinstate the US$50 billion awards – which had been set aside four years ago on jurisdictional grounds. The appeal court found that Russia was bound to provisionally apply the Energy Charter Treaty, and rejected the state’s other grounds of challenge – including that the investors had “unclean hands”.

The firm also helped Egyptian state entity EGAS defeat a US$3.1 billion claim by Unión Fenosa Gas (UFG) in a Madrid-seated arbitration. The tribunal concluded that it lacked jurisdiction because UFG had already secured a US$2 billion ICSID award against Egypt.

Shearman played no role in the ICSID case, but it did help see off a US$270 million claim by a UFG affiliate in 2016, and a US$10 million gas price adjustment claim in the following year. Egypt settled all disputes with UFG in early 2020.

The firm is now acting for Egypt in a new US$1.8 billion UNCITRAL claim over a petrochemical plant before a tribunal in The Hague.

On the investor side, it helped Turkish construction company Enka obtain full satisfaction of a US$47 million ICC award against Gabon after bringing US enforcement proceedings.

It acted for the world’s largest eyewear maker, EssilorLuxottica, in a corporate governance dispute arising from a €50 billion merger, before the matter settled.

The Abu Dhabi office has been defending a consortium made up of OHL and Egypt’s Orascom Construction in a pair of ICC cases brought by a Qatari state-backed foundation over the construction of a medical facility in Doha, with billions in dispute. The consortium recently failed in an English court challenge to a partial award.

The firm represents another OHL consortium (this time including Samsung) in a billion-dollar dispute with a Qatari state-owned railway company over a terminated contract to build two metro stations in Doha.

Shearman’s other matters in the Middle East include billion-dollar disputes over the renovation of an airport and a US$3 billion dispute over the dissolution of a family partnership in the Gulf. 

It is defending Georgia against a treaty claim by businessman Zaza Okuashvili, also helping to prevent the renewal of an emergency arbitrator order that had restrained the sale of attached assets to satisfy tax liabilities.

The firm has been brought in as co-counsel by Swiss energy company Alpiq as it seeks to revive a US$450 million Energy Charter Treaty claim against Romania.

Pakistan’s Kot Addu Power instructed it for a US$300 million case in Singapore against Pakistan’s water and power authority.

Other instructions have come from Algeria to defend against a claim by Emirati investors in relation to a US$5 billion urban park project in Algiers; Lithuania against a claim by French company Veolia Environnement; and Ukraine against subsidiaries of Russian aluminium giant Rusal. 

On the claimant side, the firm is helping a Dubai-based investment company and its American CEO bring a US$150 million ICSID claim against Armenia over a project to develop road and rail links to the country's southern border with Iran. It is also instructed by France’s Bolloré Africa Logistics for an ICSID claim against Togo.

Benjamin Siino was promoted to the partnership in Paris. Margaret Ryan and Tsegaye Laurendeau were promoted to counsel in London.

Client comment

François Driesen, general counsel to EDF, says the firm conducted the arbitration with the Baden-Württemberg government very efficiently. He describes Gaillard as “very impressive” in cross-examination, adding that he shaped the strategy of the case.

Another glowing review comes from Magy Samwel, senior contracts manager at Egypt’s state-owned natural gas supplier EGAS. “In my view, Shearman stands head and shoulders above its competitors,” she says.

She also describes partner Mohamed Shelbaya as an “outstanding strategist with great tactical sense” who can follow complex cases and offer practical solutions.