February 15, 2017

International Arbitration News

A Newsletter from the International Arbitration Practice

Latest Firm News

Firm Secures Victory on Behalf of Costa Rica in USD 350 Million ICSID Arbitration

A team led by Paolo Di Rosa and Patricio Grané Labat secured a victory on behalf of client the Republic of Costa Rica in the investment arbitration Supervision y Control S.A. v. Republic of Costa Rica (ICSID Case No. ARB/12/4), filed by a Spanish company under the Spain-Costa Rica bilateral investment treaty (see press release). The case, which was initiated in February 2012 and involved damages claims totalling approximately USD 350 million, concerned the operation by the claimant’s joint venture subsidiary of vehicle inspection facilities in Costa Rica. In an award (PDF) issued on 18 January 2017, the majority of the tribunal—presiding arbitrator Dr. Claus von Wobeser and Dr. Eduardo Silva Romero—rejected all of the claims as inadmissible. The majority held that most of the claims were inadmissible because the claimant failed to permanently desist from any pending domestic court proceedings concerning the same dispute, as required by the applicable treaty. The majority declared that the remaining claims were likewise inadmissible on the ground that the claimant had failed to give proper notice to Costa Rica, in breach of the treaty's 6-month notice requirement. See Global Arbitration Review and IAReporter (subscription required) articles on the award. Notably, this is the 26th consecutive positive result obtained by Arnold & Porter Kaye Scholer on behalf of sovereign clients in investment arbitrations. The firm is currently representing Costa Rica in another ICSID arbitration, Infinito Gold Ltd. v. Republic of Costa Rica (ICSID Case No. ARB/14/5).

Arnold & Porter Becomes Arnold & Porter Kaye Scholer LLP

On 1 January 2017, Arnold & Porter LLP and Kaye Scholer LLP combined to form Arnold & Porter Kaye Scholer LLP (see press release). The combined firm has nearly 1,000 attorneys across 13 offices. For the legacy firm Arnold & Porter, the combination has resulted in geographic expansion in two jurisdictions—Germany and China, as well as a significantly strengthened presence in New York. Commenting on the combination, Richard M. Alexander, who serves as Chair of the combined firm, said: "The collective talents and financial resources of the new firm will allow us to continue to deliver to clients the sophisticated counsel and service that they expect, while creating substantial economies of scale that will accelerate our investments in talent and technologies and enable us to pursue innovation in the efficient delivery of legal services."

Patricio Grané Labat Returns to Firm; London Team Expands

Patricio Grané Labat has re-joined the firm as a partner in the International Arbitration practice, resident in the London office (see press release and Global Arbitration Review article). Mr. Grané has more than 20 years of experience in international arbitration, international trade, and public international law. Prior to entering private practice, Mr. Grané served as a trade diplomat and negotiator in Geneva, and has also served as a consultant to the United Nations on international trade law. Most recently, he was a partner at a firm dedicated to public international law.

Timothy Smyth has also joined the firm's London office as an associate. Mr. Smyth has experience advising sovereign states, multinational businesses, and individuals in relation to international arbitration and public international law. Prior to working for the firm, Mr. Smyth worked in the London and Paris offices of another international law firm.

Recent Engagements

Arnold & Porter Kaye Scholer Represents Panama in ICSID Arbitration Relating to Trademark Licensing

A team led by Whitney Debevoise and Gaela Gehring Flores has been retained to represent the Republic of Panama in relation to a recently filed ICSID arbitration, Bridgestone Licensing Services, Inc. and Bridgestone Americas, Inc. v. Republic of Panama (ICSID Case No. ARB/16/34). The claim, which was initiated by two United States subsidiaries of Japanese tire manufacturer Bridgestone, relates to a dispute over trademark licensing (see Global Arbitration Review article). The legacy firm Arnold & Porter has represented Panama in two prior ICSID arbitrations, including Transglobal Green Energy et al. v. Republic of Panama (ICSID Case No. ARB/13/28), which concluded in June 2016 with a victory for Panama.

The Philippines Engages the Firm for ICSID Arbitration

An Arnold & Porter Kaye Scholer team including Whitney Debevoise, Anton Ware, Mallory Silberman, Monty Taylor, Brian Bombassaro, and John Muse-Fisher will defend the Republic of the Philippines in ICSID case Shell Philippines Exploration B.V. v. Republic of the Philippines (ICSID Case No. ARB/16/22). The arbitration, which was filed pursuant to the Philippines-Netherlands bilateral investment treaty, arises from a dispute concerning the taxation of an energy exploration consortium of which the claimant is a member (see IAReporter article (subscription required)).

Arnold & Porter Kaye Scholer Represents Claimant in ICC Arbitration Relating to Mining Railway

A team led by Gaela Gehring Flores, Anton Ware, and Paolo Di Rosa is representing the claimant in an ICC arbitration relating to a mining railway in Latin America. The combined value of the claims and counter-claims asserted in the arbitration exceeds USD 1.5 billion.

The Firm Advises Middle Eastern Company on Construction-Related Dispute

An Arnold & Porter Kaye Scholer team led by David Reed is advising a refinery company based in the Middle East and North Africa region on a dispute with a joint venture between two Asian investors in relation to a USD 2.2 billion Engineering Procurement & Construction contract for a hydrocracker plant facility. The amount in dispute is in excess of USD 400 million.

Arnold & Porter Kaye Scholer Assists Panama in Adding Item to Meeting of ICSID Administrative Counsel

Whitney Debevoise, Brian Bombassaro, and Catherine Kettlewell assisted the Republic of Panama with respect to the addition of an item concerning the issue of security for costs awards in favour of respondent States to the agenda of the annual meeting of the Administrative Council of ICSID. A background paper on the issue prepared by the firm's team was circulated to all members of ICSID. ICSID will undertake a survey of costs awards in favour of respondent States and propose a rule on security for costs as part of a recently announced process for amending the ICSID Arbitration Rules. (see Global Arbitration Review article).

Recent Recognitions and Appointments

Arnold & Porter Kaye Scholer's International Arbitration Practice Named One of Law360's Practice Groups of the Year

"With an eye toward landmark matters and general excellence," Law360 named Arnold & Porter Kaye Scholer one of the 2016 Practice Groups of the Year for International Arbitration. In an article accompanying the recognition, the publication noted that, "[l]ong sought after in Latin American investor-state disputes, Arnold & Porter Kaye Scholer LLP's international arbitration practice has expanded its work with businesses and countries around the world. […] Commercial disputes have been a growing part of the practice . . . ."

Dmitri Evseev Appointed to ICSID Roster; Joins Three APKS Attorneys

Dmitri Evseev has been designated by the Czech Republic to the Panel of Arbitrators of the International Centre for Settlement of Investment Disputes (ICSID) (see press release). Whitney Debevoise and Paolo Di Rosa are members of the same Panel. José Antonio Rivas is a member of the ICSID Panel of Conciliators. No other law firm in the world has a larger combined number of attorneys on the ICSID Panels of Arbitrators and Conciliators than Arnold & Porter Kaye Scholer. Mr. Evseev's appointment has been reported by Law360 and Commercial Dispute Resolution News.

APKS "Stands Out" According to The Legal 500 UK 2016 Rankings

In its 2016 rankings, The Legal 500 UK has described the London-based International Arbitration team of the legacy firm Arnold & Porter as "stand[ing] out for investor-state arbitrations, and . . . also active in commercial disputes." The publication also noted the team's reputation for its "representations of sovereigns in international financial transactions." Patricio Grané Labat  is "highly regarded" and "praised for his 'excellent command of investment arbitration issues and proceedings'," and Dmitri Evseev and David Reed are recommended.

U.S. News & World Report Ranks the Legacy Firm Arnold & Porter Among Top International Arbitration Practices

The legacy firm Arnold & Porter's International Arbitration team has been ranked "Band 1" for International Arbitration - Commercial and International Arbitration - Governmental in Washington, DC, by the U.S. News & World Report 2017 law firm rankings. In the "National" category, the publication ranked Arnold & Porter as "Band 1" for International Arbitration - Commercial and "Band 2" for International Arbitration - Governmental.

Three APKS Attorneys Among Who's Who Legal "Future Leaders"

Three of the firm's attorneys—Dmitri Evseev, Anton Ware, and Mallory Silberman—have been recognised by Who's Who Legal as "Future Leaders" in Arbitration for 2017. The publication notes that "Arnold & Porter performs well with three highly rated nominees." According to client comments quoted by Who's Who Legal, Mr. Evseev is "one of those rare lawyers who can look at a case, understand its strengths and weaknesses and really focus and hone in on that; a great drafter and a brilliant mind; he knows the law inside out." Mr. Ware "left clients 'most impressed by his skills as a presenter and cross examiner during the hearings'." Meanwhile, Ms. Silberman "is described as 'one of the best advocates I have seen' and was praised for her 'creative mind' and as 'great to work with'."

Raul Herrera Named a Top Latino Lawyer 2016

Latino Leaders magazine recognised APKS Washington-based partner Raul Herrera in its list of Top Latino Lawyers for 2016.

Upcoming Events

Third-Party Funding in International Arbitration. The Washington, DC office of Arnold & Porter Kaye Scholer will host a panel discussion on "Current Issues on Third-Party Funding in International Arbitration," organised by the DC Bar's International Law Section's International Investment & Finance Committee. 21 February 2017, Washington, DC.

Cambridge Arbitration Day. Patricio Grané Labat will speak on the topic of "Defending Investment Arbitration – A lost battle?" at the Cambridge Arbitration Day, an event co-sponsored by Arnold & Porter Kaye Scholer. 18 March 2017, Cambridge, UK.

Harvard International Arbitration Conference. Paolo Di Rosa will speak at the 3rd Annual Annual Harvard International Arbitration Conference organised by the Harvard International Arbitration Law Students Association. 30 – 31 March 2017.

Harvard Advocacy Workshop. Mallory Silberman will be part of the faculty in an advocacy workshop at Harvard Law School. 30 March 2017, Cambridge, MA.

Allegations of Corruption in International Arbitration. Paolo Di Rosa will be a panelist for the 2017 American Bar Association (ABA) Spring Meeting panel on "Dealing with Allegations of Corruption in International Arbitration." 26 April 2017, Washington, DC.

Peruvian Institution of Arbitration's XI International Arbitration Congress. Patricio Grané Labat will speak at the XI Congreso Internacional de Arbitraje organised by the Instituto Peruano de Arbitraje (in Spanish). 26 – 29 April 2017, Lima.

Latin American Arbitration Conference. Paolo Di Rosa will be a speaker at the IX Latin American Arbitration Conference (CLA). 1–2 June 2017, La Paz, Bolivia.

Recent Events and Publications

ICC Report on Financial Institutions and International Arbitration. Whitney Debevoise, with assistance from Brian Bombassaro, co-led the preparation of a chapter on sovereign finance and international arbitration in a recently published report (PDF) by a Task Force of the ICC Commission on Arbitration and ADR regarding financial institutions' perceptions and experience of international arbitration, as well as opportunities to increase the use of international arbitration by financial institutions.

Tips for Second-Chairing an Oral Argument. Mallory Silberman co-authored a chapter on second-chairing an oral argument for Global Arbitration Review's Guide for Advocacy.

Panama GAR Know-How Guide. Gaela Gehring Flores authored a "know-how" guide on Panama as part of Global Arbitration Review's Investment Treaty Arbitration publication. The guide provides detailed insight into the State's treaty program and related issues.

The Definition of an Investment Dispute in International Practice. Dmitri Evseev spoke on this topic as an international expert at a forum in Astana organised by the Supreme Court of Kazakhstan and the ABA Rule of Law Initiative, with participation of numerous State officials and private investors. 3 February 2017, Astana.

The Future of International Agreements. John Bellinger spoke on this topic as part of an online briefing titled "International Law and the Trump Administration" hosted by the American Society of International Law. 1 February.

APKS London Hosts Event on CEE and Russian Disputes. The London office of APKS hosted the fourth annual Arbitration Tea and Talk, which saw counsel from three arbitral institutions—ICC's Maria Hauser-Morel, LCIA's Gavkhar Saitazizova, and SCC's Natalia Petrik—address "Perspectives on CEE and Russian Disputes," in a discussion moderated by APKS's Dmitri Evseev. The event was followed by a dinner organised by Russian-Speaking Lawyers in International Commercial Arbitration (RYUMKA). 25 January 2017, London.

Treaty Shopping and the Establishing of an Investment. The Washington, DC office of APKS hosted a panel discussion on "Recent Lessons on Treaty Shopping and the Establishing of an Investment," organised by the DC Bar International Law Section's International Investment & Finance Committee. The panel discussion was moderated by Paolo Di Rosa. 25 January 2017, Washington, DC.

International Commercial Arbitration Lecture. As in previous years, Arnold & Porter sponsored the American University Washington College of Law's Annual Lecture on International Commercial Arbitration. The 2016 Annual Lecture, which was the eleventh edition of the lecture, was presented by Professor James R. Crawford. 28 September 2016, Washington, DC.

Russian-Speaking Lawyers in London. London-based partner Dmitri Evseev hosted an informal drinks and networking event for Russian-Speaking Lawyers in International Commercial Arbitration (RYUMKA). 13 December 2016, London.

Using Mock Arbitration. Amy Endicott was a panelist at the ICC YAF roundtable on "Using a Mock Arbitration to Improve your Case," during which the panelists discussed strategies and benefits of mocking a case before sending it to the tribunal. 1 November 2016, Los Angeles, CA.

DC Women in International Arbitration. Gaela Gehring Flores participated in a panel discussion about proposals for innovative solutions for greater retention and advancement of experienced women in law firms that had emerged from a Women in Law Hackathon competition. 18 October 2016, Washington, DC.

Witnesses and Experts in International Arbitration. José Antonio Rivas spoke on this topic at the 5th ICDR & CCB International Arbitration and Mediation Conference. 18 October 2016, Bogotá, Colombia.

International Commercial Arbitration Lecture. As in previous years, Arnold & Porter sponsored the American University Washington College of Law's Annual Lecture on International Commercial Arbitration. The 2016 Annual Lecture, which was the eleventh edition of the lecture, was presented by Professor James R. Crawford. 28 September 2016, Washington, DC.

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