2020 Arbitration Team of the Year: Female Empowerment Award

Part I: Arbitration Team of the Year Awards 2020

To close 2020, Jus Mundi is proud to be presenting the Arbitration Team of the Year. We decided to select the winner differently as we predominantly considered the law firm’s nomination ratio of female arbitrators in the last three years looking at the date of acceptance of the appointment besides their track-record.

ATOY: Female Empowerment Award 2020 goes to Foley Hoag

The lack of gender diversity among international arbitral appointments has been a persistent issue in international arbitration. Studies have also shown that gender diversity in arbitral tribunals enhances arbitration legitimacy and improves its procedures and outcomes. Hence, we added it as a condition while selecting the Arbitration Team of the Year. We used three years as the criterion to have enough data for nominations to compare because the arbitration tribunal constitution may take some time. Please note that we only looked at the data available on Jus Mundi to find the winner. Gender diversity is one of the core values of Jus Mundi as a company & we support all initiatives aimed at increasing the appointment of female arbitrators in international arbitration.

We are delighted to report that Foley Hoag is the recipient of the Arbitration Team of the Year. We recognize Foley Hoag’s efforts for female arbitrator nominations (see the table of cases below). In the last three years, Foley Hoag has nominated women arbitrators 5 out of 10 times, representing a 50% nomination ratio in investment, commercial, and investor-state arbitration settings. Congratulations to the firm promoting more female arbitrators in international arbitration.

Foley Hoag also reflects this commitment internally, with seven women partners and counsel in its International Arbitration and Litigation practice:

• Christina Beharry has built a deep bench of experience in international investment arbitration that has consistently earned her a spot on WWL’s Arbitration Future Leaders list (2019-2021). She is particularly well-known for her expertise in damages and frequently publishes on the subject, including her recent book Contemporary and Emerging Issues on the Law of Damages and Valuation in International Investment Arbitration (Brill Nijhoff).
• Janis Brennan brings both international dispute resolution and transactional experience to her extensive international practice. In the area of international disputes, Janis represents sovereign states and their state-owned corporations in investor/state disputes before ICSID and other arbitral forums and in lawsuits brought against her governmental clients in the US courts, governed by the US Foreign Sovereign Immunities Act.
• Clara Brillembourg is specialized in representing sovereign States in international disputes with other States, foreign investors, and US plaintiffs. She is consistently recognized for her expertise in international arbitration by Chambers, Legal 500 Latin America, Legal 500 USA, Latinvex, and Who’s Who Arbitration. She has been ranked for five years as among the top 35 women attorneys in international arbitration by Latinvex and selected as one of twelve “Next Generation Partners” in Arbitration by Legal 500.
• Christina Hioureas represents States, private and State-owned entities and individuals in international disputes, advises States on matters before the United Nations, chairs the firm’s UN Practice, and serves as arbitrator in international and domestic arbitration disputes (UNCITRAL, ICDR, AAA, ICC Rules). She has been designated as an “Up and Coming” Arbitrator by “Chambers USA: Arbitrators”; “Up and Coming” in “Chambers Global: Public International Law”; and by Who’s Who Legal: Arbitration – Future Leaders.
• Diana Paraguacuto-Mahéo frequently counsels sovereigns and companies in investment and commercial arbitrations as well as in proceedings before national courts. She has repeatedly been listed by the Global Arbitration Review’s Who’s Who of Commercial Arbitration and since 2020 is recognized by the Global Arbitration Review as a sought out arbitrator and mediator in complex international disputes. She is also consistently listed in Best Lawyers in France.
• Tafadzwa Pasipanodya is ranked by Latinvex as one of the top 100 female lawyers in the world working on Latin American matters and is recognized for her dispute resolution expertise in Who’s Who Legal: Arbitration and Legal 500: the USA and Latin America. She is Vice President of the African Society of International Law and a member of the Executive Council of the American Society of International Law. She understands English, Shona, Spanish, French, German, and Portuguese.
• Diana Tsutieva is a dually-qualified US/French attorney who is also fluent in Russian. She focuses her practice on international investment arbitration, public international law matters, and international commercial arbitration, with particular experience representing clients in arbitration proceedings administered by ICSID, UNCITRAL, ICC, and other institutions. She has been recognized for the past four years by Who’s Who Legal: Arbitration – Future Leaders.

Foley Hoag’s International Litigation and Arbitration Department includes over 50 highly experienced international litigators from different parts of the world, with different backgrounds, fluent in more than 20 languages. Multicultural Law magazine named Foley Hoag as one of the Top 100 firms for diversity. In addition, Yale Law Women named Foley Hoag a top firm for parental and caregiver leave in its Top Firms for Gender Equity & Family Friendliness 2020 report.

Foley Hoag is also on top of their game with an outstanding track-record in handling complex state-to-state disputes and all types of arbitrations. In August 2020, Foley Hoag’s victory in defending the case Agarwal and Mehta v. Uruguay marked the firm’s victory for Uruguay in investor-state disputes. After Philip Morris v. Uruguay in 2016 and Italba v. Uruguay in 2019, the third consecutive win concerning a dispute over an iron ore mine. In the Agarwal case, the tribunal unanimously upheld Uruguay’s jurisdictional objections, ruling that as mere discretionary beneficiaries of a trust, the claimants were not the investment owners who lacked standing to invoke the protections of the United Kingdom – Uruguay BIT. Foley Hoag is now representing Uruguay in an investment arbitration concerning the downfall of its national airline, Pluna.

Table of arbitration cases involving Foley Hoag nominating female arbitrators

Foley Hoag nominated arbitrator Brigitte Stern twice. The firm also nominated arbitrator Elvira Martínez Coco twice, and arbitrator Hélène Ruiz Fabri once.

Recent victory case analysis: Agarwal and Mehta v. Uruguay

Facts

• In the early 2000s, Indian billionaire Pramod Agarwal and his companies invested in iron ore mines in Uruguay.
• In 2007, his Jersey-registered company Zamin Ferrous announced that it planned to invest US$3 billion in the Valentines iron ore mining project in Uruguay.
• In 2008, its local subsidiary Minera Aratiri secured the concession and invested millions of dollars in prospecting and exploration work.
• In 2013, Uruguay passed a large-scale mining law, providing a legal framework for large-scale mines that had previously not existed in Uruguay, including technical, environmental, and financial requirements for these projects.
• While Pramod Agarwal was Indian, and his companies had various other nationalities not protected under a BIT with Uruguay, his children, the claimants, Rikita Mehta, Prenay Agarwal, and Vinita Agarwal, are UK nationals.
• They are discretionary beneficiaries of a Cayman Islands trust, which held the shares in Mineral Aratiri through a series of companies registered in Jersey and India.
• In August 2016, shortly before the arbitration was initiated, the claimants’ status was changed from discretionary beneficiaries to fixed beneficiaries.
• In 2017, the claimants filed a claim concerning an investment in Valentines iron ore mine in Uruguay under the UK-Uruguay BIT and the UNCITRAL rules.

Tribunal constitution

• Pierre Mayer (Appointed by the State)
• Thomas Johnson, Jr. (Appointed by the investor)
• Andrés Rigo Sureda (President)

Legal issue

• Whether the claimants were owners of the investment at the time the dispute arose.

Interview With Clara Brillembourg

Since the Agarwal and Mehta v. Uruguay case award has not been made public, could you please highlight the tribunal’s reasoning?

The case involved an iron ore mine that would have been the largest in Uruguay’s history. Uruguay contended that the mine failed for financial and technical deficiencies attributable to the investor, while the investor blamed Uruguay’s adoption of a new mining code. The tribunal found it lacked jurisdiction because the Claimants did not own the claimed investment. The Claimants had been discretionary beneficiaries of a trust fund at the relevant time, and they therefore had no ownership rights to the investment – only a mere expectation that one day they might receive some money from the trust, which held shares in the parent company.

What is the impact of the Agarwal award on the future of investment arbitration in the mining industry?

Miners, like all claimants in investment arbitration, must prove that they truly own the investment being claimed. The tribunal did not need to reach the merits in the case, but I am confident that if it had, the Award would have had important impacts on the mining industry’s need to comply with the financial, technical, and environmental legal requirements to receive and keep a concession. This will be even more critical in the future as States are becoming more mindful of the positive and negative consequences of large-scale mining and the need to closely regulate these projects to ensure that they strike the right balance between the project’s long term stability, economic growth, and environmental protections.

As the winner of the ATOY, Foley Hoag has the most female arbitrator appointments in the past three years. Please share your insight on opportunities and best practices to promote gender diversity in the field of international arbitration, especially in investor-state arbitration?

We do our best to objectively appoint the most qualified arbitrators in our arbitrations. The most qualified candidates do not all fall within one gender. An all-male list can indicate that you have not been as thorough in evaluating all the best options. So we make a point of ensuring that women are included among the list of candidates being considered in order to ensure that all the most qualified candidates are considered.

What is your advice for young female arbitration practitioners who wish to promote their credentials and become arbitrators?

Outshine the competition with the quality of your work, and don’t be shy in making your aspirations known to others.

Do you have a favorite arbitration or international law case that you enjoyed working on? Please tell us about this case & what makes it interesting.

Representing Uruguay in the ICSID arbitration against Philip Morris was a highlight in my career. Tobacco use has killed more people than World Wars I and II combined, and if current trends continue, it may cause one billion deaths in the 21st century. It is a rare privilege to work on a case that is a matter of life and death. Defending Uruguay’s ability to protect its people (and especially its young people) by courageously enacting the next generation of tobacco control regulations was both meaningful and rewarding. Learning about the tobacco industry’s tactics by reading decades of internal industry documents was also fascinating.

Transparency in arbitration is debated frequently these days. What is your opinion on it?

As with most things in arbitration, I think you need to consider this issue on a case by case basis. There are some cases with such broad implications for a country or industry that they should be treated as a matter of public interest. There are others that are best served and protected by keeping the proceeding confidential.

Presentation of the law firm

Foley Hoag’s International Arbitration Practice Group is headed by partner Paul Reichler and Lawrence Martin. Foley Hoag has been a go-to law firm for sovereign states for a wide range of specialties, such as international treaties, international investment law, and dispute resolution, delimitation of maritime and land boundaries, sovereign and diplomatic privileges and immunities, international environmental law, extraditions, the use of force and the law of armed conflict, international trade and sanctions, and human rights.

Key clients

• For investor-state disputes: Bangladesh, Belgium, Croatia, Ecuador, El Salvador, Greece, India, Nepal, Peru, Qatar, Slovakia, Ukraine, Uruguay, and Venezuela.
• For inter-state matters: Bangladesh, Croatia, Djibouti, Ghana, Guyana, Mauritius, Nicaragua, the Philippines, Qatar, and Somalia.
• For domestic litigation representing states: Angola, Brazil, Greece, Ecuador, Nicaragua, Peru, Spain, and Tanzania.
• For private clients: Orange, Air France, Alcatel-Lucent, and Crédit Agricole.

Track-record highlights

Foley Hoag has an enviably strong record of defense wins for States facing investment treaty claims:

• In 2020, the firm helped Mauritius defeat a €70 million ICSID claim while protecting a UNESCO World Heritage site commemorating resistance against slavery.
• Bangladesh and its national oil and gas company Petrobangla retained the firm to defend a new ICSID claim worth over US$100 million brought by Canada’s Niko Resources, in which the tribunal is currently considering the value of the damages Niko owes to Bangladesh.
• The firm has been recently instructed to defend Uruguay in another ICSID claim over the collapse of the country’s former national airline; Croatia in two separate arbitration proceedings relating to its banking and financial sectors; and Nepal, in the country’s first-ever ICSID dispute arising from the imposition of capital gains tax on a share transaction in the telecommunications sector.
• In 2019, the firm helped Uruguay prevail in a US$65 million ICSID claim by a Florida company concerning a revoked telecoms license, winning millions in costs.
• In 2019, the firm helped Qatar and Greece settle claims brought by Jordanian and Chinese investors before ICSID and under the UNCITRAL Rules, respectively.
• In 2019, the firm helped Venezuela defeat a US$400 million ICSID claim by UK mining company Anglo American.
• In 2018, the firm helped India defeat a UNCITRAL claim by French company Louis Dreyfus Armateurs relating to port operations in West Bengal.
• In 2016, the firm helped Uruguay defeat an ICSID claim by Philip Morris over cigarette packaging legislation, winning US$8 million in costs.
• In 2016, the firm helped El Salvador defeat an ICSID claim by Australian-owned mining company Pacific Rim over the denial of permits on environmental grounds.
• In 2015, the firm helped Belgium prevail in its first-ever ICSID case, defeating a €1 billion claim by a Chinese shareholder in the Fortis financial services group.
• In 2014, the firm helped Slovakia win the dismissal of separate UNCITRAL claims by Austrian bank EURAM Bank and Dutch insurer Achmea.
• In 2013, the firm helped Venezuela win a US$633 million ICSID claim brought by Dutch and Panamanian mining investors at the jurisdictional phase.
• In 2013, the firm helped Venezuela win the dismissal of a US$1 billion ICSID claim by Canadian miner Infinito Gold.
• In 2011, the firm helped Ecuador succeed in reducing a US$700 million claim by Chevron to a US$96 million award in favor of the US oil company.
• In 2010 and 2014, the firm helped Venezuela win (here and here) a pair of US$180 million treaty claims by Canada’s Nova Scotia Power at the jurisdictional phase.

Foley Hoag also has an impressive record in the public international law arena:

• In 2020, the firm helped Qatar secure a resolution adopted by the Council of the Universal Postal Union (UPU), by a vote that supports the arbitration proceedings that Qatar instituted against Bahrain, Egypt, Saudi Arabia, and the UAE under the UPU. The firm represents Qatar in these proceedings, which are underway.
• In 2020, together with Debevoise & Plimpton, Foley Hoag helped Qatar secure victory in two aviation disputes (here and here) before the ICJ. The proceedings before the ICAO Council have resumed, and the firm is representing Qatar for the merits.
• The firm is also part of a co-counsel team with Debevoise & Plimpton acting for Qatar in an ICJ case against the UAE for breach of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
• In 2019, the firm helped Mauritius obtain an advisory opinion from the ICJ that the Chagos archipelago forms an integral part of Mauritius’ territory and that the UK must return it “as rapidly as possible.” The firm is now representing Mauritius in a related boundary dispute with the Maldives before ITLOS.
• In 2016, the firm helped the Philippines succeed in the South China Sea arbitration under the United Nations Convention on the Law of the Sea (UNCLOS), in which China did not participate.
• In 2012 and 2014, the firm helped Bangladesh obtain good outcomes in disputes with Myanmar and India, respectively, over rights to resources in the Bay of Bengal.

Check out the interactive table of cases below to learn about recent and current Foley Hoag representations.

Table of arbitration cases involving Foley Hoag (Recent victories/pending cases)*

Currently, Foley Hoag is acting as counsel in several ICSID cases, notably in cases representing Panama against Webuild, Peru against Desarrollo Vial de los Andes, Uruguay against Latin American Regional Aviation Holding, Bangladesh and its national oil and gas company Petrobangla against Niko Resources, Croatia against Adria, and Nepal against Axiata. The firm has also been very active in inter-state disputes recently, especially representing Qatar before the ICJ, ICAO Council, and ad hoc tribunals under the auspices of the UPU, Mauritius before the ITLOS, and Gambia and Guyana before the ICJ.

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

We selected a few recent victories and ongoing cases of Foley Hoag in the table below.

(Note*: This table is not exhaustive.)

[table id=17 /]

Spotlight – the Agarwal and Mehta v. Uruguay case team

• Paul Reichler (Partner, Co-Chair, International Litigation and Arbitration Department – Washington, DC)

Paul is recognized as a “Star Individual” in Chambers Global 2019 rankings for Public International Law. He was counsel and advocate for Nicaragua in the case of Nicaragua v. United States of America, for Uruguay in the case of Argentina v. Uruguay, for the Philippines in Philippines v. China (The South China Sea Arbitration), and most recently for Mauritius in advisory proceedings regarding the decolonization of the Chagos Archipelago. He has extensive experience representing sovereign States in land and maritime boundary disputes, disputes over transboundary environmental harm, and disputes with foreign investors in the world’s principal arbitral forums.

• Clara Brillembourg (Partner – Washington, DC)

Clara is specialized in representing sovereign States in international disputes with other States, foreign investors, and US plaintiffs. She has successfully represented States in disputes involving territorial rights, human rights, and environmental harm before the ICJ, PCA, and ITLOS. She has extensive experience representing sovereigns in investment arbitrations before ICSID and other prominent arbitral fora, including representing Uruguay in the victory against Philip Morris. In addition, she specializes in extraditing high-level government officials from the United States and sovereign representation before US courts. She is consistently recognized for her expertise in international arbitration by Chambers, Legal 500 Latin America, Legal 500 USA, Latinvex, and Who’s Who Arbitration. And has been selected as one of twelve “Next Generation Partners” in Arbitration by Legal 500 and ranked for five years as among the top 35 women attorneys in International Arbitration by Latinvex. Clara is a national of the United States and Venezuela.

• Derek Smith (Partner – Washington, DC)

Derek’s practices involve the areas of international dispute resolution, international boundaries, public international law, and petroleum law. He represents governments and state entities in international arbitration and litigation, including proceedings under the ICSID Convention, the ICC Rules, the UNCLO, and cases before the ICJ.

• Tafadzwa Pasipanodya (Partner – Washington, DC)

Tafadzwa has represented sovereign States in investor-state arbitrations concerning natural resources, mining, the environment, infrastructure, and health policy before ICSID, UNCITRAL, and ICC tribunals. She has also advised States in disputes concerning the law of the sea, maritime delimitations, territorial claims, human rights, and environmental rights before the ICJ, UNCLOS tribunals, and other fora. Tafadzwa is ranked by Latinvex as one of the top 100 female lawyers in the world working on Latin American matters and is recognized for her dispute resolution expertise in Who’s Who Legal: Arbitration and Legal 500: the USA and Latin America. She is Vice President of the African Society of International Law and a member of the Executive Council of the American Society of International Law. She understands English, Shona, Spanish, French, German, and Portuguese.

• Diana Paraguacuto-Mahéo (Partner – Paris)

Diana specializes in international arbitration and litigation, alternative dispute resolution, and sovereign States representation. She regularly serves as counsel in complex arbitral proceedings, either ad hoc or held under major institutions’ auspices. She has considerable experience in the conflict of laws and represents clients in connection with litigation and arbitration proceedings. Diana has repeatedly been listed by the Global Arbitration Review’s International Who’s Who of Commercial Arbitration and since 2020 is also recognized by the Global Arbitration Review as a sought-out arbitrator and mediator in complex international disputes.  She is also consistently listed in Best Lawyers in France and is ranked among the excellent practitioners of leaders league France.

• Christina Beharry (Counsel – Washington, DC)

Christina’s practice focuses on public international law, investor-state and commercial arbitration, international trade, and investment policy. She is particularly well-known for her expertise in damages and frequently publishes on the subject, including her recent book Contemporary and Emerging Issues on the Law of Damages and Valuation in International Investment Arbitration (Brill Nijhoff). She has public and private sector experience in disputes involving various industries, including mining, oil and gas, renewable energy, chemical manufacturing, agriculture, forestry, healthcare, telecommunications, and tobacco.

• Diego Cadena (International Counsel – Washington, DC)

Diego’s practice focuses on comparative law and international dispute resolution. He has advised in matters related to sovereign debt, financial restructuring, international financial litigation, public procurement, investor-State international arbitration, commercial arbitration, and bilateral and multilateral agreements negotiations.

• Madeleine Rodríguez (Associate – Boston)

Madeleine’s practice is built on a strong foundation of State and federal trial experience emphasizing complex commercial disputes and international litigation and arbitration. She represents foreign States, State-controlled entities, and multinational corporations in US federal courts and investment treaty disputes before international arbitral tribunals.

• Yuri Parkhomenko (Associate – Washington, DC)

Yuri counsels and represents sovereign States before the ICJ, the ITLOS, and ad hoc arbitral tribunals in disputes concerning territorial sovereignty, maritime and land boundary delimitation, international responsibility, treaty interpretation, use of force, human rights, and environment. He also counsels and represents States in investment arbitration before the ICSID and other arbitration institutions.

• Joseph Klingler (Associate – Washington, DC)

Joseph is an associate in the firm’s International Litigation and Arbitration Department. He exclusively represents sovereign States and State-owned entities before the world’s principal dispute resolution bodies.

• Alejandra Torres Camprubí (Associate – Paris)

Alejandra’s practice focuses on public international law, international investment arbitration, and set-aside proceedings before French courts. She has particular experience representing sovereign States and State-owned entities in arbitration proceedings administered by ICSID and the PCA, as well as in inter-State cases before the ICJ and ITLOS.

• Elisa Méndez Bräutigam (International Lawyer – Washington, DC)

Elisa has particular experience representing clients in investor-State arbitration proceedings administered by the ICSID and the PCA and commercial arbitration proceedings under the ICC Rules. In these proceedings, she represented clients on energy and environmental matters.

• Rika Lopez (Law Clerk – Washington, DC)

Rika specializes in investor-state arbitration and disputes concerning public international law matters. She is fluent in Spanish and French, and her experience includes arbitral proceedings administered by the PCA, mediation under the ICC Rules, and international litigation involving sovereign state parties. She obtained law degrees, with honors, in both the US and France—with a focus on interstate disputes, state responsibility, and international litigation and arbitration.

For more information on Foley Hoag’s international dispute resolution practice, click here.

Congratulations to the team again, and Jus Mundi wishes them good luck for the future!

Runner ups for ATOY

Squire Patton Boggs and Latham & Watkins are both runner ups for Arbitration Team of the Year. Both law firms had eight arbitrator appointments in the last three years in which the arbitrator appointment dates/period were available to Jus Mundi. Out of these eight arbitrator nominations, three were female arbitrators.

Squire Patton Boggs nominated arbitrator Maria Vicien Milburn twice and arbitrator Brigitte Stern once.

• Marko Mihaljevic v. Republic of Croatia – Maria Vicien Milburn (April 2020)
• Worley Parsons v. Republic of Ecuador – Brigitte Stern (between February 2019-2020)
• Sharr Beteiligungs GmbH v. Kosovo Privatisation Agency – Maria Vicien Milburn  (between January 2019-2020)

Squire Patton Boggs’s International Dispute Resolution Group comprises lawyers focusing on dispute resolution, arbitration, litigation, advocacy, risk and crisis management, dispute prevention, and mediation. With more than five decades of active involvement in international transactions and disputes, the firm enjoys solid working relationships with established local counsel in most strategic markets of the world.

Squire Patton Boggs’ International Dispute Resolution Group is led by Stephen Anway and George von Mehren.

Latham & Watkins nominated arbitrator Stern Brigitte twice and arbitrator Gloster Elizabeth once.

• Galway Gold Inc. v. Republic of Colombia – Brigitte Stern (August 2018)
• Gran Colombia Gold Corp. v. Republic of Colombia – Brigitte Stern (October 2018)
• Mason Capital L.P. and Mason Management LLC v. Republic of Korea – Elizabeth Gloster (September 2018)

Latham & Watkins provides private corporations, investors, state-owned enterprises, and states a sophisticated International Arbitration Practice capable of resolving disputes that straddle borders, corporate structures, jurisdictions, cultures, political systems, and treaties. Latham offers particular international commercial and investment treaty arbitration expertise, multi-jurisdictional disputes, and Public international law.

Latham & Watkins’ International Arbitration Practice is headed by Fernando Mantilla-Serrano, Sophie Lamb QC, and Claudia Salomon.  Claudia has been recommended for election as President of the ICC International Court of Arbitration with effect from 1 July 2021 putting her on a path to becoming the first woman President of the ICC Court in its almost 100-year history.

Congratulations to the runner ups and Jus Mundi wishes them good luck for the future!