Debevoise & Plimpton

Arbitration Team of the Month #04

Introduction

A formidable team of attorneys known for creative lawyering, a deep and diverse bench, and ground-breaking victories around the world, Debevoise & Plimpton’s International Dispute Resolution Group earns its spot for the Arbitration Team of the Month. The team has prevailed in both investor-state and inter-state disputes, having fought for human rights before the International Court of Justice and for commercial clients in other tribunals, securing awards of historic scale.

• Fielding an all-women team in hearings this summer, Debevoise represents Qatar before the International Court of Justice (ICJ) in a case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates). In June 2018, Qatar instituted proceedings against the UAE concerning alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination “CERD”). The Debevoise team twice prevailed in proceedings on provisional measures before the ICJ against the UAE, including in 2018 when the ICJ granted Qatar’s request for provisional measures against the UAE in relation to continuing human rights violations arising from the UAE’s imposition of discriminatory measures against Qatar and Qataris, and in 2019 when the ICJ rejected the UAE’s request for provisional measures against Qatar. In April 2019, the UAE raised preliminary objections to the jurisdiction of the Court and the admissibility of the application. Public hearings took place virtually from August 31, 2020, to September 7, 2020, on the preliminary objections raised by the UAE under the CERD, and the Court is now in the process of deliberation.
• Debevoise has successfully represented Qatar in its submission of first-of-their-kind inter-State Communications under Articles 11-13 of the CERD. The communications allege violations of the CERD by the UAE and Saudi Arabia. Against the objections of both States, the CERD Committee found in September 2019 that the communications are within the scope of the Convention and that their merits can therefore proceed to be considered by ad hoc Conciliation Commissions.
• Debevoise helped secure a significant victory in July for the State of Qatar before the ICJ in international airspace disputes. In two Judgments, the Court unanimously rejected the three grounds of Appeal brought by Bahrain, Egypt, Saudi Arabia and the United Arab Emirates against Qatar in cases concerning Appeal Relating to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and the United Arab Emirates v. Qatar) and Appeal Relating to the Jurisdiction of the ICAO Council under Article II, Section 2, of the 1944 International Air Services Transit Agreement (Bahrain, Egypt and United Arab Emirates v. Qatar). Debevoise continues to represent the State of Qatar in connection with these proceedings, which have been remanded to the ICAO Council.
• In a multibillion matter, Debevoise represents Qatar Airways in connection with four recently launched investment arbitrations against the UAE, Saudi Arabia, Bahrain, and Egypt, respectively. Qatar Airways seeks compensation of at least $5 billion under the OIC Investment Agreement, the Arab Investment Agreement, and the Egypt – Qatar BIT.
• Winning the second-largest award in the history of ICSID, Debevoise represented mining company, Tethyan Copper, in a dispute against Pakistan and the Pakistani province of Balochistan, for a combined total award of $5.9 billion. In this matter, Debevoise lawyers defeated jurisdictional objections, defended allegations of illegality, and overcame challenges against the arbitrators. On the merits, the tribunal found that acts of Balochistan and its organs were attributable to Pakistan, and concluded that fair and equitable treatment (FET) was an autonomous standard, containing the principle of legitimate expectations. The tribunal also found that the licence denial constituted an expropriation, and was not a bona fide regulatory measure. It dismissed three counterclaims filed by Pakistan, finding no breach by the investor. In a decision dated September 17, 2020, an ICSID ad hoc committee granted the State’s request to maintain the stay of enforcement under conditions that Pakistan provides security of at least 25% of the award’s damages plus an undertaking that it would comply with the award.
• Debevoise also helped Perenco secure an ICSID award against Ecuador, a matter in which an ICSID tribunal ordered Ecuador to pay approximately $449 million in compensation for breaches of two crude oil participation contracts and the Ecuador-France BIT. On the counterclaim, the tribunal awarded Ecuador $54 million of the claimed $2.5 billion. On February 21, 2020, the ICSID annulment committee issued a decision on the continued stay of enforcement. On April 21, 2020, the committee issued a procedural order confirming that the stay of enforcement of the award would be maintained.
• In a 2019 vindication for media freedom, Debevoise won a €110 million ICSID award for Becchetti and other Italian investors involved in the media, electrical generation, and waste management sectors in the Hydro and others v. Albania case under the Italy-Albania BIT. Earlier, the firm had successfully persuaded the ICSID tribunal to grant provisional measures recommending that Albania cease criminal and extradition proceedings against the Italian claimants. Recently, following Albania’s annulment application, only ten days after the decision on the stay of enforcement of the award, on March 23, 2020, the ICSID annulment committee terminated the stay of enforcement of the award.

Victories analysis:

Itisaluna v. Iraq

Debevoise acted for the Republic of Iraq (the “State”) to defend ICSID claims brought by Itisaluna Iraq LLC and others under the Agreement on Promotion, Protection, and Guarantee of Investments amongst the Member States of the Organization of the Islamic Conference (“OIC Investment Agreement”). This was the first time that an ICSID tribunal was constituted for a dispute under the OIC Investment Agreement. Debevoise secured a decision in favour of the State as the tribunal, by a majority decision, declined jurisdiction over the investors’ claims in the award rendered on April 3, 2020.

Facts

• In 2006, Munir Sukhtian Investment (MSI) and Iraq National Communications and Media Commission (CMC) entered into a licence agreement for the provision of the public telecommunications network in Iraq, including the associated international gateway services.
• In March 2017, MSI along with Itisaluna Iraq LLC, VTEL Holdings Ltd., and VTEL Middle East and Africa Limited (the “Investors”) initiated ICSID arbitration proceedings.
• The Investors argued that the CMC prohibited them from exercising their right to operate the international gateways, which deprived their investment in Iraq.
• The Investors’ legal claims against Iraq included expropriation (both direct and creeping), minimum treatment standard, and other treaty violations, including breaches of national treatment and fair and equitable treatment commitments under the OIC Agreement.
• In October 2017, the State raised a jurisdictional objection that the tribunal lacked jurisdiction ratione voluntatis over the dispute.
• In June 2018, the tribunal bifurcated the proceedings.

Legal issues

1. Whether resort to arbitration is conditional on the prior resort to conciliation under the OIC Agreement.
2. Whether the OIC Agreement provides for investor-State arbitration.
3. Whether Claimants could rely on the MFN clause contained in the OIC Agreement to import consent to ICSID arbitration from the Iraq-Japan BIT.

Tribunal Constitution

• Daniel Bethlehem (chair, appointed by the parties)
• Brigitte Stern (nominated by the State)
• Wolfgang Peter (nominated by the Investors)

Tribunal’s decision

• The tribunal, by a majority decision, declined jurisdiction. The majority consisting of Daniel Bethlehem and Brigitte Stern found that the OIC Investment Agreement contained a mandatory conciliation requirement, with which the claimants had failed to comply.
• The majority also decided that the claimants could not rely on a most favoured nation (“MFN”) clause to establish Iraq’s consent to ICSID arbitration. In the jurisdictional stage, Debevoise contended that Iraq had not consented in writing to submit the dispute to ICSID arbitration.
• Wolfgang Peter saw no mandatory conciliation requirement under the OIC Investment Agreement and believed that the MFN clause could be used to grant access to ICSID arbitration.

Legal rationale

• On the question of the interpretation and application of the OIC Investment Agreement, by emphasising the multilateral character of the treaty, the majority noted that the terms of the OIC Investment Agreement could not be read in a manner that would enlarge jurisdiction by referencing a bilateral treaty practice of the State.
• The tribunal then considered the MFN clause under the OIC Investment Agreement. The majority found that consent to ICSID arbitration cannot be established using the MFN clause in the OIC Investment Agreement.
• First, the tribunal confirmed that the OIC Investment Agreement contemplates investor-State dispute settlement. Considering general rules of treaty interpretation, the tribunal concluded that following the object and purpose of the Preamble, Article 16 in the OIC Investment Agreement could not be read in isolation and disconnected from Article 17.
• Second, the majority stressed that the “if … that” language supports the view that resort to conciliation is a precondition to arbitration, and thus found conciliation as a mandatory requirement prior to the initiation of the arbitration proceedings.
• Finally, the majority reckoned that the claimants were precluded from using the MFN clause to import the State’s consent to ICSID arbitration. Citing the Maffezini v. Spain case, the majority agreed that the application of the MFN clause should not override public policy considerations.
• Arbitrator Peter in his dissenting opinion, agreed with the perspective adopted by the Al-Warraq tribunal, which rejected the majority’s approach and considered that Article 17 offers claimants the choice between conciliation or arbitration. He also believed that the Investors could import consent to ICSID arbitration from the Iraq-Japan BIT via the MFN clause contained in Article 8(1) of the OIC Agreement.

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates)

Facts

• In June 2017, the UAE, Saudi Arabia, Bahrain and Egypt (the “Respondent States”) adopted a range of measures against Qatar and Qataris, including expelling Qataris located in the UAE and prohibiting Qataris from entering the UAE, which had significant human rights impacts on Qataris.
• In June 2018, Qatar submitted to the ICJ an Application Instituting Proceedings under the International Convention on the Elimination of All Forms of Racial Discrimination “CERD”), as well a Request for Provisional Measures against the UAE to protect the human rights of Qataris.
• Following a three-day hearing, the ICJ in July 2018 granted Qatar’s request for provisional measures against the UAE.

Legal issues

• Whether Qatar’s Request met the applicable standard for the Court to indicate provisional measures.

The Court’s decision

• On July 23, 2018, the Court granted Qatar’s request for provisional measures, ordering that the UAE must ensure that families including a Qatari who have been separated by its measures are reunited; Qatari students affected by the measures were given the opportunity to complete their education in the UAE or to obtain the necessary records to do so elsewhere; and Qataris affected by the measures must be allowed access to tribunals and other judicial organs.

Legal rationale

• The Court found that Qatar has met all three requirements for the indication of provisional measures.
• First, the Court found that the provisions relied upon by Qatar as a basis for the Court’s jurisdiction—namely, Article 22 of the CERD—appeared, prima facie, to afford a basis on which its jurisdiction could be founded. Specifically, the Court held that the acts that Qatar alleged violated the CERD were “capable of falling within the scope of CERD ratione materiae” and that the procedural preconditions under Article 22 had been met. Therefore, it held that prima facie, it had jurisdiction pursuant to Article 22 of the CERD to consider the dispute.
• Second, the Court considered whether the rights asserted by Qatar were “at least plausible” and whether there was a link between those rights and the provisional measures being requested by Qatar. The Court held “that some of the acts of which Qatar complains may constitute acts of racial discrimination as defined by the [CERD]” and thus that the rights asserted by Qatar were plausible. The Court also found that the measures requested by Qatar were aimed at protecting specific rights under the CERD.
• Finally, the Court found that there was an imminent risk that the measures adopted by the UAE could lead to irreparable prejudice to the rights invoked by Qatar, noting that “certain rights in question” were “of such a nature that prejudice to them is capable of causing irreparable harm.”

Current Status of the Case

• In March 2019, the UAE submitted to the ICJ a Request for Provisional Measures against Qatar.
• Following a second three-day hearing, in June 2019 the Court rejected the UAE’s request by a vote of 15 to 1, concluding that none of the UAE’s requests met the Court’s standard to indicate provisional measures.
• In April 2019, the UAE raised preliminary objections to the jurisdiction of the Court and the admissibility of Qatar’s application.
• From August 31, 2020, to September 7, 2020, the Court held virtual public hearings on the preliminary objections raised by the UAE under the CERD. The case is currently under deliberation.

Interview with Catherine Amirfar (Partner) & Floriane Lavaud (Counsel)

What does the outcome of Hydro v. Albania mean for independent media?

The tribunal’s decision in Hydro is a vindication for the protection of independent media under the international rule of law.  The tribunal in its decision acknowledged the targeting of the claimant’s media company by the Government of Albania, in circumstances where that company was among the only independent voices with coverage critical of the Albanian Government. The tribunal’s decision will hopefully stand as a deterrent for the targeting of independent media in other countries.

Congratulations, Catherine, on your appointment as President of the American Society of International Law (ASIL)! Can you tell us some of your responsibilities as president and any plans you may have for ASIL’s future direction?

Thank you!  I have the honour of serving as ASIL’s 49th President.  The Society is over a century old and core to the Society’s mandate from the very beginning was to create a forum for the discussion of international law and international affairs. Over the near two decades I’ve been involved in the Society, the Society has become my intellectual and professional home, and a place where I go to agree and disagree on questions of international law and policy about which I care deeply.

My ambition is to make sure the Society stays relevant and central to the current public discourse about the approach to global problems such as climate change, migration, racial injustice, human rights, and disease, just to name a few, which implicate core issues that go to the international rule of law.  An interview I did when I took office can be found here.

Catherine, can you tell us about the podcast for ASIL called “International Law Behind the Headlines” you currently co-host? 

This podcast has been a joy to do with my co-host, Professor Kal Raustiala.  We choose topics ripped from the headlines and speak to experts who can provide insight on cutting-edge issues such as social media and freedom, the relationship between the U.S. and China, what the Trump Administration’s approach to treaty withdrawal means for the international legal fabric, and cybersecurity and the U.S. election, just to name a few.  Our podcasts are aimed at anyone interested in these issues, not just international lawyers.  We just recently completed our 24^th episode.  They can be found here.

After the victory of the two ICJ cases concerning the civil aviation disputes, what effect will the Court’s judgment have on the Gulf dispute?

The Court’s judgment reinforces that the ICAO Council is the proper forum for resolving the aviation-related aspects of the dispute between the parties. While we can’t predict how the ICAO Council will rule, we hope that all parties to the dispute will participate fully in the proceedings and will recognize the importance of engaging with the ICAO Council and international dispute settlement processes to resolve the broader Gulf dispute more generally. As it is the second and third time that the

ICJ has been called upon to exercise appellate review of decisions of the ICAO Council, what effect will the Court’s judgment have on the dispute settlement function of international organizations?

The ICJ’s exercise of appellate review of the ICAO Council’s decisions on jurisdiction is a particular role that the Court plays, that is specifically set out in the Chicago Convention and the International Air Services Transit Agreement. The Court’s judgment in these cases not only reinforces that role, but also the ICAO dispute settlement system as a whole. We hope that the judgment will have the same effects in similar regimes, where a particular body such as the ICAO Council is vested with the authority to decide disputes, and the ICJ has oversight over its decisions.

Congratulations on having twice prevailed in securing Qatar’s provisional measures against the UAE concerning the application of the CERD! How was it like to be part of an all-women team?

Our team is collaborative and very committed to this case, and it’s a joy to work with them.  And we’re especially proud to have an all-women team handling the most recent hearing on preliminary objections on behalf of Qatar.  You do not see every day in international disputes, but just reflects the dedication of our group as a whole to attracting and supporting women lawyers.

Presentation of the law firm 

Debevoise & Plimpton is a premier global law firm that represents high-profile clients in international transactions and dispute resolution in markets around the world. The firm’s International Dispute Resolution Group, a diverse and multilingual group of lawyers experienced in tribunals and courts around the world, provides a full range of service in both international commercial and investment arbitration, where it acts for sovereign states, companies, and individuals. The practice group has particularly strong expertise in the energy sector and has strong showings in the mining, oil and gas, and telecoms sectors.

Donald Francis Donovan and David W. Rivkin jointly lead the firm’s International Dispute Resolution Group; Catherine Amirfar, Donald Francis Donovan, and Lord Peter Goldsmith are Co-Chairs of the Public International Law Group.

Key clients
Qatar, South Korea, Iraq, Israel, Grenada, Mexico, Singapore and Russia; and companies: Occidental Petroleum, Tethyan Copper, Perenco, ExxonMobil and Murphy Oil, Gramercy and Francesco Becchetti.

Track-record highlights

• Landmark $2.3 billion ICSID award for Occidental against Ecuador in 2012; Debevoise secured the second-largest ICSID award for Tethyan against Pakistan. The firm is now defending the award in annulment.
• Debevoise helped Perenco obtained a $449 million ICSID award against Ecuador and is now acting in annulment.
• Debevoise represented Francesco Becchetti and other investors in the Hydro and others v. Albania case and won a €110 million ICSID award against Albania. The firm is defending the award in annulment.
• The firm’s other representations within ICSID proceedings include MAKAE Europe against Saudi Arabia; Nova Groupe against Romania; Gramercy against Peru; and Iraq in defending claims brought by Agility.
• Debevoise has also been very active in inter-state disputes recently, especially for representing Qatar before the ICJ. In July 2020, the Court rendered two judgments (here and here), unanimously rejecting appeals in the civil aviation disputes. Earlier, the firm has prevailed twice in securing provisional measures (here and here) for Qatar against the UAE concerning the application of the CERD.

Check out the interactive table of cases below to learn about recent and current Debevoise & Plimpton representations.

Table of arbitration cases involving Debevoise & Plimpton (Recent victories/pending cases)*

Currently, Debevoise is acting as counsel in several ICSID cases, notably in the annulment proceedings for Tethyan, Perenco, and Hydro. The firm is also bringing ICSID claims against Peru, Papua New Guinea, Saudi Arabia, and Romania. On the respondent side, the firm is helping Iraq defend the claim brought by Agility.

To see all types of cases (investor-state, inter-state, commercial arbitration) involving Debevoise & Plimpton available on Jus Mundi, please click here.

Debevoise & Plimpton earns its spot to be the ATOM for its extensive track record of arbitration cases & clients. We selected a few recent victories and ongoing cases in the table below.

(Note*: This table is not exhaustive.)

[table id=14 /]

Spotlight

The Qatar team in Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates):

Catherine Amirfar (Partner) Catherine is Co-Chair of the firm’s Public International Law Group and a member of the firm’s Management Committee. She focuses on public international law and international commercial and treaty arbitration. Earlier this year, Catherine was appointed President of the American Society of International Law, for which she co-hosts a podcast called “International Law Behind the Headlines”.

Floriane Lavaud (Counsel) Floriane is a member of the firm’s International Dispute Resolution Group in New York and Paris. She focuses on public international law and international arbitration, with a focus on the Middle East. Floriane currently represents Qatar before the ICJ, the ICAO Council, and the CERD Committee. She also represents Qatar Airways in four investment arbitrations against the UAE, Saudi Arabia, Bahrain, and Egypt.

Merryl Lawry-White (Associate) Merryl is a member of Debevoise’s International Dispute Resolution Group based in London. Her practice includes public international law, investment treaty and commercial arbitration, international humanitarian law, human rights, and transitional justice. She regularly assists clients with public international law matters, as well as business and human rights and environmental concerns.

Ashika Singh (Associate) Ashika is a litigation associate based in New York. She focuses on international dispute resolution and public international law. She regularly speaks and writes on public international law, particularly international human rights law and international humanitarian law.

Julianne Marley (Associate) Julianne is a litigation associate based in New York. She focuses on international dispute resolution and public international law. She currently represents Qatar and Qatari entities and individuals in international claims before the ICJ. She also represents MAKAE Europe SARL in an ICSID arbitration against Saudi Arabia.

Ramsay McCulloch (Associate) Ramsay McCulloch is a litigation associate based in London. He is a member of the firm’s International Dispute Resolution Group and White Collar & Regulatory Defense Group. He currently represents Qatar Airways in four investment arbitrations against the UAE, Saudi Arabia, Bahrain, and Egypt. He also represents Qatar and Qatari entities and individuals in international claims before the ICJ and other international fora.

Jessica Polebaum (Associate) Jessica is a litigation associate based in New York. She focuses on international dispute resolution and public international law. She currently represents Qatar Airways in four investment arbitrations against the UAE, Saudi Arabia, Bahrain and Egypt. She also represents Qatar and Qatari entities and individuals in international claims before the ICJ and other international fora.

Rhianna Hoover (Associate) Rhianna is a litigation associate based in New York. She focuses on international dispute resolution and public international law. She currently represents Qatar Airways in four investment arbitrations against the UAE, Saudi Arabia, Bahrain and Egypt. She also represents Qatar and Qatari entities and individuals in international claims before the ICJ and other international fora.

The Itisaluna v. Iraq case team:

Donald Francis Donovan (Partner) Donald is Co-Chair of Debevoise’s International Dispute Resolution Group and its Public International Law Group. He serves as counsel in international disputes before international courts and arbitration tribunals. He also sits as arbitrator in international cases, including under the auspices of ICSID, the ICC, and the ICDR.

Catherine Amirfar (Partner) See above.

Laura Sinisterra (Associate) Laura is a member of the firm’s International Dispute Resolution Group based in New York. She focuses on international investment and commercial arbitration. Her representations include Perenco in ICSID proceedings against Ecuador, as well as Iraq in two ICSID proceedings related to the telecommunications sector.

Sarah Lee (Associate) Sarah is a litigation associate based in New York. She focuses on international dispute resolution and public international law. Her representations include Iraq in defending claims brought by Agility, Gramercy against the Government of Peru, as well as Perenco in ICSID proceedings against Ecuador.

For more information on Debevoise & Plimpton’s international dispute resolution practice, click here. Congratulations to the team again, and Jus Mundi wishes them good luck for the future!