White & Case

Arbitration Team of the Month #16

Introduction

White & Case needs no introduction. Thanks to its skill and experience, the firm acquired a reputation as a go-to firm for global corporations, financial institutions, investors, and sovereign states, on complex and high-stakes disputes in investment and commercial arbitrations.

White & Case is this month’s ATOM for its extensive work in international arbitration. According to data available on Jus Mundi, White & Case has been involved in at least 180 international case(s) known by Jus Mundi (113 Investor-States, 60 Commercial Arbitrations, 6 Sports Arbitrations, 1 Advisory Proceedings). 43 of these cases are pending and 3 ICSID cases are pending annulment.

Their high-profile cases cover a wide range of economic sectors including: financial services, energy, power, mining & metals, pharmaceuticals & healthcare, technology, telecommunications, transportation, construction, retail and manufacturing. This month, Jus Mundi is pleased to bring light on White & Case and its International Arbitration group, along with an interview with Abby Cohen Smutny, Global Head of the firm’s International Arbitration Practice.

Interview with Abby Cohen Smutny

1. White & Case has regularly appeared at the top of rankings worldwide. What is the secret for the firm to maintain one of the prime choices for clients?

We put our clients’ needs first.  When it comes to international arbitration, White & Case has a strong tradition, central to who we are as a firm, dedicated to international dispute resolution.  We have a large team of specialists devoted to representations in international arbitration with deep expertise and capacity to handle the full range of disputes – from small matters to the largest and most complex at issue.  We work around the world, in many languages, and in nearly all industries. So we are able to offer our clients an expert team that perfectly suits their needs, no matter the circumstance.  Our firm’s service-oriented culture ensures that our clients trust us to prioritize their objectives as work with them.

2. Climate changes and environmental footprint has been a hot topic in international arbitration. Can you tell us more about the firm’s Green Initiative? What’s your insight on sustainable behavior in practicing arbitration?

We are all changing how we do business – as a law firm generally – and in our international arbitration practice.  White & Case’s Green Initiative, which was adopted in 2013, aims to improve our business practices to reduce our negative impacts on the environment and is the basis for many changes in how we function in all of our offices worldwide.  This includes adopting green energy policies, sustainable waste management strategies, and introducing efficiencies across our offices.  We have seen so many positive changes in the way we work – no more plastic water bottles – hardly any printed documents – and tele-presence business meetings!

Technology helps us to reduce our reliance on travel when a video meeting will do – and to manage what used to be mountains of paper on our mobile tablets.  This is becoming second nature to all of us in the world of international arbitration as well.

See for example the findings in the chapter on “Sustainability and Information Security” in our 2021 Queen Mary/White & Case International Arbitration Survey: Adapting Arbitration to a Changing World, which surveyed over 1,200 arbitration users globally on their attitudes to sustainable practice in arbitration: 2021 International Arbitration Survey: Adapting arbitration to a changing world | White & Case LLP (whitecase.com)

3. Could you share with us the experience of your first appointment? What does it take to be nominated as an arbitrator?

My first appointment was on a small commercial case as a sole arbitrator – after an initial telephonic meeting with the parties and drafting terms of reference, the case settled!  A great result!

While many international arbitration practitioners focus on obtaining appointments as arbitrator, it is better in my view to focus on the serious and important work of learning how to present a case and to advise clients through the process of dispute resolution.  The role of an advocate is not a lesser role – arbitrators cannot decide cases correctly if the right facts and a rigorous discussion of the applicable law is not presented.  Arbitrators who have never had to assemble the facts of a case, counsel a client through the process, and advise on the consequences of decisions are not well-equipped to serve in the decision-making role.

To be nominated as an arbitrator is to be trusted to be capable of understanding a party’s business, perspective and experience, to be able to direct proceedings fairly, and to be able to persuade co-arbitrators on points that are not initially agreed.

So developing experience learning the process and gaining an understanding of how disputes emerge and can be resolved should be the priority.

4. How do you see international arbitration changing in the years ahead?

International arbitration is getting bigger and better!  More parties in more places around the world are turning to international arbitration.  The number of international arbitral centers is growing, interest in international arbitration is increasing in all parts of the world, and the number of lawyers practicing in the field is exploding.  This is an exciting time to be an international arbitration practitioner – there have never been more opportunities for those interested.  International arbitration is becoming more diverse and more inclusive.  With the flood of available third party funding disrupting the space, we will see even greater attention paid to time and costs of the process, with more innovation using artificial intelligence, we will see greater efficiencies, and with the addition of new players, we will continue to adapt and discover new ideas.

Presentation of the firm

White & Case’s International Arbitration practice is widely recognized as preeminent in its field. The firm is also a global leader in investment arbitration with vast experience includes representations of both investors and States. While the firm’s recent investment arbitration work stands out in the mining and metals sector, team members’ sector-specific expertise span energy, oil and gas, infrastructure, financial services, and pharmaceuticals. The firm is known for dominant investment arbitration with significant strength in emerging markets and additional expertise in commercial arbitration from a wide range of sectors. Its top-tier practice provides outstanding representation in financial services, energy, power, mining & metals, pharmaceuticals & healthcare, technology, telecommunications, transportation, construction, retail and manufacturing, alongside significant expertise in enforcement proceedings. The firm’s impressive global coverage brings unrivaled insight into arbitrators, institutions, expert witnesses, and opposing counsel.

Key clients

• Government clients: South Korea, Russia, Belarus, Bulgaria, Georgia, North Macedonia, the Philippines, Uzbekistan, India, and Pakistan.
• Corporate clients: Agility Public Warehousing Company, Eldorado, Gabriel Resources, Gold Reserve, Grupo Unidos por el Canal, Ioan Micula, Jindal Steel, MetLife, Mitsui & Co, Orascom, PT Ventures, Sacyr, TECO Guatemala Holdings, Toshiba, Webuild, WRB Enterprises, and Zurich Insurance Group.

Track-record

• In 2004, the firm won US$877 million for Czech bank Ceskoslovenská obchodní banka against Slovakia, one of the largest ICSID awards on record. CSOB v. Slovakia
• In 2008, the firm defended an €850 million ICSID claim against over electricity pricing and renewable energy regulation. Plama v. Bulgaria
• In 2010, the firm defended Ukraine against a US$35 million ICSID claim brought by Global Trading and Globex International. It marked the first instance where a tribunal summarily dismissed claims presented in an ICSID arbitration in their entirety under the ICSID Rules. Global Trading v. Ukraine
• In 2011, the firm represented tens of thousands of Italian holders of Argentine bonds in a US$2.4 billion dispute and established jurisdiction before ICSID. Five years later, the firm eventually secured a US$1.35 billion settlement. Abaclat and others v. Argentina
• In 2011, the firm obtained a US$295 million payout for Siemens and its South Korean partner to end a decade-long ICC dispute with Mexico’s Pemex over a refinery upgrade. Conproca v. Petroleos Mexicanos and Pemex
• In 2012, the firm achieved a significant victory for Swiss company SGS in an ICSID arbitration against Paraguay in a dispute arising out of non-payment for inspection services. Paraguay’s annulment application was dismissed two years later. SGS v. Paraguay
• In 2013, the firm helped a Lebanese-owned company win US$550 million against the Republic of the Congo and defended the award against corruption allegations in the French courts afterward. Commisimpex v. Congo (II)
• In 2013, the firm achieved the first dismissal of a treaty claim at ICSID on the ground of corruption. Metal-Tech v. Uzbekistan
• In 2014, the firm secured a US$740 million ICSID award for Gold Reserve in an ICSID arbitration against Venezuela relating to one of the world’s largest undeveloped gold/copper deposits. Gold Reserve v. Venezuela
• In 2014, the firm helped the Philippines defeat a second arbitration in a long-running dispute over the construction of Manila’s airport, following its first victory in 2010. Fraport v. Philippines (II) & Fraport v. Philippines (I)
• In 2016, the firm helped Uzbekistan knock out a US$132 million claim over cotton subsidies. Spentex v. Uzbekistan
• In 2016, the firm helped Peru defeat an US$800 million treaty claim by the US’s Renco Group relating to liability for environmental pollution in the Andes. Renco v. Peru (I)
• In 2017, the firm helped Finnish utility TVO settle a €6 billion ICC case against Areva and Siemens over the design and construction of a nuclear power plant. The client received a €450 million indemnity. Areva v. TVO (II)
• In 2019, the firm secured a US$650 million ICC award for Portugal’s PT against fellow shareholders in an Angolan mobile operator – a US$3 billion dispute heard by a five-member tribunal. PT Ventures v. Vidatel and others
• In 2019, the firm defended Bulgaria in an €850 million claim brought by an Austrian energy group relating to electricity pricing and renewable energy regulation. EVN v. Bulgaria
• In 2020, the firm obtained an award worth over US$65 million for Grenada Private Power and WRB Enterprises against Grenada over a share purchase agreement. Grenada Private Power and WRB v. Grenada

Recent instructions

• The firm is acting for US businessman Daniel Kappes and his Nevada-based company Kappes Cassiday & Associates in a US$350 million DR-CAFTA dispute against Guatemala in an ICSID arbitration regarding an mining development. Kappes v. Guatemala
• Pakistan has instructed the firm to seek revision of a US$5.9 billion ICSID award won by mining company Tethyan Copper over lease of a copper and gold deposit. Tethyan Copper v. Pakistan
• The firm has been acting for Spanish-Italian engineering consortium GUPC in multiple arbitrations – together worth US$5.7 billion – with the Panama Canal Authority relating to the cost of the canal’s expansion. Three of its five ICC arbitrations have been concluded.
  • GUPC v. ACP (I) (Pacific Entrance Cofferdam Arbitration)
  • GUPC v. ACP (V) (Advance payments or Guarantee Arbitration)
  • GUPC v. ACP (II) (Concrete Arbitration)
• The firm is advising GUPC in two other ICC arbitrations: one concerning the design and manufacture of lock gates for the project and increases in labor costs, the other concerning delays and disruptions to concrete earthworks for the canal project.
  • GUPC v. ACP (III) (Lock Gates Arbitration)
  • GUPC v. ACP (IV) (Disruption, Unforeseeable physical conditions and other claims Arbitration)

• The firm is acting for Eldorado in multibillion-dollar ICC arbitration over the sale of a pulp producer. CA Investment v. J&F Investimentos and Eldorado
• The firm is representing Georgia in ICSID’s first administered proceeding on claims filed by two Dutch energy companies at the SCC, which will be heard by the same tribunal in parallel to a claim filed at ICSID. Gardabani and others v. Georgia (II)
• Georgia retained the firm in parallel ICC and ICSID claims collectively worth more than US$1 billion over the State’s cancellation of a contract to develop a deep-water port. ADC v. Georgia & Meijer v. Georgia
• The firm is acting for TECO in a long-running ICSID proceeding to annul the 2020 resubmission award, in which the 2013 award had been annulled. Guatemala was ordered in the original proceedings to pay US$21 million to TECO over electricity tariffs, where the investor sought US$243 million in compensation. The ad hoc committee annulled the decision in 2016. TECO then launched the resubmission proceeding and secured a further US$55 million for future losses in 2020. TECO v. Guatemala
• The firm is instructed by Mitsui in an ICSID claim against Spain over a €260 million solar power project. Mitsui & Co. v. Spain
• The firm is defending Belarus in an ICSID claim brought by Lithuania’s Modus Group over a luxury hotel project next to the State’s main airport. Pavilniu saules slenis 14 and Modus grupe v. Belarus
• The firm is representing Gabriel Resources and its subsidiary in a US$4.4 billion ICSID claim against Romania concerning the environmental permit required for exploitation of the Roșia Montană gold mining project. Gabriel Resources v. Romania
• The firm is acting for Webuild in a US$2.2 billion ICSID claim against Panama in relation to the long-running dispute between a consortium and Panama Canal Authority. Webuild v. Panama

Table of international arbitration cases involving White & Case

White & Case is currently acting as counsel in multiple investor-State and commercial arbitration cases, notably representing clients in ICSID proceedings.

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

Please click here to see all types of cases (investor-State, inter-State, and commercial arbitration) involving White & Case available on Jus Mundi.

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(Note*: This table is not exhaustive.)

Spotlight – Abby Cohen Smutny (Global Head of International Arbitration Practice)

Abby Cohen Smutny is Global Head of International Arbitration Practice. Ms. Smutny’s experience includes representing clients in various industries, including banking, financial services, oil & gas, mining, electric power, real estate development, water supply, retail, pharmaceuticals, construction, tobacco, railroads, telecommunications, and manufacturing. She has significant experience managing claims arising out of project financing, privatizations, natural resource concessions, contracts with States and state entities, and political risk insurance.

For more information on White & Case’s international arbitration practice, click here.

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