Arbitration Team of the Month #02
The importance of building a strong enforcement strategy in international arbitration has been highlighted recently when oil and gas investors successfully sought enforcement of a US$540 million arbitral award against the Republic of Kazakhstan in carefully selected jurisdictions. The case Ascom Group S.A., Anatolie Stati, Gabriel Stati, and Terra Raf Trans Traiding Ltd. v. Republic of Kazakhstan (“Stati case“) is a complex global case giving rise to enforcement proceedings in jurisdictions including the United Kingdom, the United States, Sweden, the Netherlands, Belgium, Luxembourg, and Italy. It is also the first case to give rise to a virtual trial in the English High Court to be broadcast on Youtube.
Representing the investors, the leading law firm King & Spalding (K&S), which also successfully intervened in other high–profile cases this year and placed itself at the top of the 2020 GAR 30 rankings, stood out once again for its insightful strategy and expertise.
Among the anticipated cases of the year, the firm has been representing Chevron in a series of wins against Ecuador on the grounds of denial of justice in various countries like Brazil, Canada, Gibraltar, the Hague & the USA – where the judgment was not enforced for being a product of fraud. In July 2020, the firm secured a win in Argentina when the Supreme Court refused to enforce a US$9.5 billion judgment against Chevron relating to environmental pollution in the Amazon.
King & Spalding is also known for its impressive win for Spanish energy company Unión Fenosa Gas, represented by the firm in an ICSID claim against Egypt. The State was ordered to pay US$2.2 billion for cutting back gas supplies to a liquefied natural gas plant, following the rejection of Egypt‘s allegations of corruption against the investors. Eventually, in early 2020, a settlement was reached with Egypt in which the State agreed to make a cash payment of US$395 million to the Unión Fenosa Gas as well as US$399 million to the plant‘s lenders.
This month, Jus Mundi is therefore pleased to bring light on the law firm and its team & an interview with Amy Roebuck Frey, Partner in Paris.
Key facts of the cases and legal rationale
The Stati case
- In December 2013, the Stati parties secured a Stockholm Chamber of Commerce (SCC) award of over US$500 million against Kazakhstan. Kazakhstan was found liable for breaching the provisions of the Energy Charter Treaty and its fair and equitable treatment provisions.
- The SCC tribunal consisting of Karl-Heinz Böckstiegel as chair, David Haigh QC, and the late Sergei Lebedev issued the award, finding that the Statis‘ companies had been subjected to “coordinated harassment“ by Kazakh authorities following the termination of their oil and gas contracts. Kazakhstan has opposed enforcement of that award based on fraud allegations in Sweden, the U.S., the Netherlands, Luxembourg, Belgium, and the U.K. Initially worth US$508 million, the award is valued at US$543 million as of 2020.
- The Bank of New York Mellon (“BNYM“) got involved in the enforcement proceedings as the BNYM furnishes banking and custody services to the National Bank of Kazakhstan (“NBK“) & the NBK manages assets for Kazakhstan through a sovereign wealth fund called the National Fund of Kazakhstan. Therefore, it was argued that the accounts held by BNYM represented assets of Kazakhstan.
- In September 2017, the Amsterdam District Court granted the Statis an ex parte attachment order. In January 2018, the Dutch courts lifted the attachment of US$22.6 billion on the Bank of New York Melon‘s accounts as Kazakh assets. In 2019, the Dutch appeal court upheld a preliminary freeze on assets held by a Dutch entity through which Kazakhstan participates in a consortium for the exploration of an oil and gas field in the Caspian Sea.
- In July 2020, the Amsterdam Court of Appeal has recognized the US$543 million Energy Charter Treaty award, ruling that the State had failed to establish that the alleged fraud had any material effect on the award.
- In October 2017, the Belgian court granted the Stati parties‘ application for attachments and garnishments for the same assets frozen by the Dutch courts. In May 2018, the Belgian court lifted the freeze on over US$22 billion in assets held by the BNYM, reducing the size of the attachment to US$530 million.
- Kazakhstan challenged the attachment order, and the Belgium court referred the matter to the English Courts in 2018.
- The Stati parties obtained an attachment order amounting to US$100 million relating to Kazakhstan‘s shareholding in 33 Swedish public companies from the Swedish courts. Kazakhstan failed to stop the enforcement of the award in Sweden as the alleged ground of fraud did not succeed.
- In Luxembourg, the Stati parties secured a further garnishment order against BNYM along with the attachments of Kazakhstan‘s shareholding in Luxembourg-based Eurasian Resources Group. The Statis also secured trade receivables owed to Kazakhstan from several Luxembourg companies.
- In 2014, the Stati parties commenced the enforcement proceedings in the U.S. courts. In 2019, the U.S. Court of Appeals for the District of Columbia Circuit reaffirmed the judgment of the District Court for the District of Columbia. The courts so far have refused to allow Kazakhstan to introduce allegations of fraud as a defense against enforcement. Kazakhstan has expressed its intention to appeal this decision.
- In May 2020, the U.S. district court ordered Kazakhstan to comply with an earlier 2019 judgment in favor of the Statis‘ request for discovery regarding Kazakhstan‘s US-based assets.
- In 2018, the Stati parties applied to enforce the award in England but later served the notice of discontinuance of the enforcement proceedings & agreed not to enforce the award in England.
- As part of the attachment orders secured against BNYM in multiple jurisdictions, all assets of the National Fund of Kazakhstan (“NFK“) were also frozen in England as their assets were handled by NFK & held by BNYM in their London branch. The freezing of accounts was contested in the English Courts by Kazakhstan & NFK against BNYM. The High Court & the Court of Appeal confirmed that the attachment orders were justified.
- As part of the referral from the Belgium court, in May 2018, an action was started in the English High Court by NBK & Kazakhstan against B seeking certain declarations that were intended to answer the question referred to this court by the Belgian Court.
- In light of the COVID-19, a virtual trial was set in March 2020 in the English court. It was also broadcast on YouTube.
- The High Court declared that BNYM has obligations regarding NFK only toward the NBK & not Kazakhstan as NBK legally is a separate entity from the government. Therefore, the Statis should not be able to any sum from NFK. However, the final say in the matter is for the Belgium court to consider having regard to the Belgian law of res judicata.
The team in the arbitration involved partners Reggie Smith and Kevin Mohr (Houston), Ken Fleuriet, Amy Frey, and senior lawyer Heloise Herve (Paris), partner Egishe Dzhazoyan (London), and associates Alexandra Rotar and Valeriya Subocheva (Moscow).
The Chevron case
Since 2009, King & Spalding has represented Chevron in an UNCITRAL claim against Ecuador under the US-Ecuador bilateral investment treaty and has since won several partial awards in its favor, including denial of justice claim against Ecuador in 2018. The partial denial of justice award relates to the 2011 US$9.5 billion judgment of the Ecuadorean court that recognized Chevron‘s liability for the environmental contamination in the Amazon. Since this judgment, Ecuador has made unsuccessful attempts to enforce the judgment in Brazil, Gibraltar, Canada & the U.S. where Chevron has assets. Most recently, the Argentinian Supreme Court declined to enforce the Ecuadorean judgment due to the lack of jurisdiction.
The partial award rendered by an UNCITRAL tribunal in The Hague concluded that the Ecuadorean judgment was obtained through fraud, as it had been ghostwritten by at least one representative of the State. It thus held Ecuador liable for reparation for injury caused to Chevron through the enforcement of the US$9.5 billion judgment, within or outside the country. Ecuador has challenged this award in the Dutch courts.
The tribunal was composed of Horacio Grigera Naón (appointed by Chevron), Vaughan Lowe QC (appointed by Ecuador), and Albert Jan van den Berg as chair, in replacement of VV Veeder QC, who passed away in March 2020.
The team in the arbitration involved partners Doak Bishop, Tracie Renfroe, Carol Wood, Craig Miles, David Weiss, and associates Sara McBrearty and Eldy Quintanilla Roché (Houston); partners Edward Kehoe and Isabel Fernández de la Cuesta (New York); partners Brian White, & Elizabeth Silbert; partner Wade Coriell and associate Anisha Sud (Singapore)
Interview with Amy Roebuck Frey
- You have helped secure the $535 million award against Kazakhstan in one of the largest Energy Charter Treaty arbitral awards ever. What is your insight on the multinational enforcement strategy your team followed?
Enforcement strategies are very client-specific and depend on the size of the award, the location of the award debtor’s assets, the clients’ risk appetite, how strongly the award debtor resists voluntary payment, timing concerns, and the like. It is not always necessary to employ an enforcement strategy like that of the Stati case, in which parallel proceedings are pursued simultaneously in multiple jurisdictions across the world. Contrary to what many companies assume, the overall track record of States either paying awards voluntarily or offering to settle cases to avoid enforcement actions is quite good. My firm has particularly strong experience in not only winning large awards, but also recovering on them. For those clients that do proceed to enforcement efforts, it is possible to limit the effort to only one or two jurisdictions and still recover.
Since rules and legal standards vary across jurisdictions, a critical component of any enforcement strategy is having legal counsel with specialized, jurisdiction-specific expertise. My firms’ clients are fortunate to have access to those specialists in many of the most prominent enforcement jurisdictions throughout the world, and in a nutshell that is why the Stati effort has been successful.
- What influence do you reckon the outcome of the Stati case has had so far on investment treaty arbitration?
I hope that it serves as an example that the investment treaty system “works” – aggrieved investors can pursue a claim, have their case heard by an independent body, prevail on the merits, and – if necessary – force the responsible State to comply. It is not an easy process and it is not without criticism, but the rules and systems in place function and justice can be served.
- The latest ICSID Caseload Statistics revealed a sharp decline in the women arbitrator appointments. How do you think we can tackle the diversity issue in the field, especially in investment arbitration?
In my experience, when a party is considering arbitrator appointments, the decisive criteria tend to be the candidate’s experience and the content of his or her decisions on past cases. Because women historically have not been appointed with the same regularity as men, it is very difficult for women to compete on those criteria, even assuming the party has the best of intentions with respect to diversity. Time could change this, but only if women continue to receive appointments allowing them to gain this experience, and this seems to be stagnating currently. The difficulty is that parties tend to believe that the choice of arbitrator can be outcome-determinative of their case, and thus appointing someone who does not have the track record or experience to draw from can seem like too much of a risk. Why appoint a lesser-known candidate with two or three past appointments, when you can appoint someone who has authored dozens of cases from which you can glean their views on a variety of legal issues?
I believe that the field would benefit from an injection of fresh views from a new generation of arbitrators, including not only women but also other minorities and even younger jurists. But this will either require a party willing to “take a chance” on appointing outside the established pool or lawyers advising and encouraging their clients to look beyond authorship of existing awards and find for other ways to assess candidates that would expand the pool.
- Do you have any tips for our readers in regards to representing either an investor or a State? What do you think is the most challenging in each case?
My perspective is skewed somewhat from my career focus on representing investors, but I think my answer would be the same regardless of the party I represent. I think the most challenging – and the most rewarding – aspect of any arbitration is understanding the facts and being able to use them to effectively develop and make your legal case. The law in investor-State disputes is relatively finite and, while it is developing, it is slower to change across years of practice. But the facts of each case are different, so every representation requires you to start anew. The most effective advocates are those that know the facts and evidence cold. It enables you to quickly and effectively respond to opposing arguments and point out errors or inconsistencies. And every case will have a handful of key documents that tip the scales in terms of the overall outcome.
The best part about digging into and really understanding the facts of a case is that this is a place where junior lawyers can shine. While I think even the most senior lawyer on a case should know the facts, junior lawyers tend to spend the most time reviewing evidence and can be the first to discover critical facts. This aspect of representation is challenging because it is time-consuming, you may be working in a foreign language, the scope of what you need to learn can be massive, and missing a critical fact could result in failure. But once you learn the facts well, they will stay with you throughout a proceeding. Plus, it is always satisfying to uncover the “smoking gun”!
Presentation of the law firm
King & Spalding is globally recognized as one of the world‘s leading law firms in international arbitration and litigation. The firm represents clients in a wide variety of global disputes across their 18 offices. Their imaginative strategic thinking, sense of preparation, and well-established advocacy bring them at the top of the leading ranking of international arbitration law firms, ranked number 1 worldwide for the Global Arbitration Review of 2020.
The international arbitration department is led by Edward Kehoe and Doak Bishop of the New York and Houston offices.
The group has a strength in energy disputes across the board but also acts for leading construction, manufacturing, transport, telecoms, and hospitality companies. Key clients include Chevron, Shell, Samsung C&T, the Islamic Development Bank, Reliance Industries, Betamax, Emirates International Investment Company, GE-Hitachi Nuclear Energy, and Calibri (Corps).
The firm has been representing a large number of investors following the reforms to the renewable energy subsidy regimes in Italy and Spain. In 2018, for instance, the firm won €48 million for Denmark’s Athena Investments (formerly known as Greentech) in a claim against Spain. In 2019, it won a further €7.4 million in damages in a similar dispute between Athena and Italy.
Primarily representing investors, King & Spalding has also acted for states. The firm is defending Turkey against a US$5 billion ICSID claim brought by Turkish businessman Hamdi Akin Ipek over the allegedly politically motivated seizure of his companies.
With significant expertise in the oil and gas sector, K&S also advises on major LNG export and import projects worldwide, including Anadarko‘s Mozambique project.
The Stati and Chevron cases are not the only instances in which King & Spalding has secured victory for its client. Check out the interactive table of cases below to learn about the other cases in which K&S has won or currently representing.
Table of arbitration cases involving King & Spalding (Recent victories/pending cases)*
Currently, K&S is notably acting as counsel in more than twenty energy disputes under the ECT Treaty against Spain Italy, and Romania. It is bringing an ECT case for a Maltese renewable energy company against Bulgaria; and a US$1.5 billion investment treaty claim for Shell against the Philippines. There are also pending investor-state cases against Uruguay, Algeria, and Peru. Lastly, the firm represents thirteen Kuwaiti investors in a multibillion-dollar claim against Egypt over a canceled project to build a new city south Cairo
To see all types of cases (investor-state, inter-state, commercial arbitration) involving King & Spalding available on Jus Mundi, please click here.
K&S 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 and only includes the most famous cases)
[table id=11 /]
Spotlight: The Stati case team
Amy is a partner at the Paris office. She specializes in investment treaty arbitration, public international law, and human rights law. Since beginning her career, Amy has focused predominantly on investor-state disputes from bilateral investment treaties and the ECT against, among other states, Spain, Italy, Romania, and Bulgaria for more than a dozen energy clients. She has represented investors in claims against Algeria, Argentina, Bangladesh, the Czech Republic, Ecuador, Egypt, Kazakhstan, and Venezuela, in cases brought under bilateral investment treaties and multilateral treaties. In 2016, Amy notably worked on Murphy v. Ecuador, helping the investor win an award before the Permanent Court of Arbitration, bringing Ecuador to pay the oil company at least $31 million. She also represented investor Ioan Micula in a claim brought against Romania, which resulted in a $250 million arbitral award against the State in 2013.
Egishe is a partner in the London office. He has been coordinating the Statis‘ efforts to enforce their ECT award against Kazakhstan. Egishe is uniquely placed to provide strategic legal advice concerning large and complex disputes and specializes in arbitration matters involving Russia and the CIS. During almost 20 years of practice, Egishe has advised and represented clients in more than 160 arbitration and litigation proceedings across a host of various jurisdictions.
Héloïse is a senior lawyer in the Paris office. She has experience in international arbitration cases representing multinational corporations, governments, and individual investors. She has notably represented more than a dozen investors in arbitration claims under the Energy Charter Treaty against Bulgaria, Italy, Romania, and Spain.
Ken is one of the firm’s senior treaty arbitration practitioners based in the Paris and Washington offices. Ken represents clients in a wide range of investor-state disputes involving investments in Europe, the Middle East, Asia, and Africa. He regularly represents investors under bilateral and multilateral treaties, including seven ECT arbitrations against Spain.
Kevin is a partner in the Houston office. He focuses on commercial and investment disputes, with an emphasis on complex cross-border disputes. Kevin represents domestic and international clients in a wide range of litigation, arbitration, and appellate proceedings.
Reggie is a partner in the Houston office. His specialty is in handling commercial disputes in the energy sector as well as representing investors in disputes with sovereigns under multilateral and bilateral investment treaties. Reggie has served as lead counsel in obtaining some of the largest international arbitration awards on record.
Spotlight: The Chevron case team
Doak is a partner in the Houston office and co-head of the International Arbitration practice. His international arbitration practice focuses on Latin America. Doak represents companies in arbitration and litigation of disputes in the oil and gas, energy, construction, environmental and foreign investment sectors.
Tracie is the managing partner of the Houston office. She has a national trial practice focusing on toxic tort, environmental, product liability, and commercial disputes. She has tried or litigated numerous breach of contract, conspiracy, fraud, securities fraud, and professional liability cases. As a partner in the firm‘s Energy, Environmental and Product Liability practices, Tracie represents clients in the energy, manufacturing, and pharmaceutical sectors around the country.
Carol is a partner in the Houston office and head of the firm’s Toxic & Environmental Tort group. She focuses her practice on U.S. environmental and toxic tort litigation, as well as environmental claims arising under international treaties and commercial contracts.
Craig is a partner in the Houston office. He specializes in domestic and international arbitration of investment disputes and commercial matters. Craig represents clients before arbitral tribunals worldwide.
David is a partner in the Houston office. He concentrates on investor-state arbitration and international commercial disputes. David has significant experience in investment disputes, energy disputes, and disputes in Latin America.
Sara is a senior associate in the Houston office. She focuses on complex, international commercial, and investment disputes arising from long-term and foreign projects. Sara has represented clients in several of the largest international arbitrations on record and has particular experience in the energy sector. She has acted as counsel in domestic and international arbitration proceedings held under the auspices of most of the major arbitral institutions
Eldy is a senior associate in the Houston office. Eldy’s experience includes representing corporate clients in investor-state and commercial arbitrations, tort litigation, and foreign enforcement of judgments. She focuses on advising clients on energy-related disputes, civil law issues, international law, and damages.
Isabel is a partner in the New York office. She advises clients in complex international commercial arbitrations and investment treaty disputes with host governments. Isabel has more than 14 years of experience representing clients in international arbitrations conducted in English and Spanish under the ICSID, ICC, and other major arbitral institutions.
Brian is a partner in the Atlanta office. He represents clients in complex litigation matters in courts throughout the U.S. and before arbitral tribunals throughout the world. These matters include disputes involving mergers and acquisitions, joint venture agreements, commercial lending, license agreements, sale of goods transactions, real estate transactions, distributor agreements, construction projects, and insurance coverage. Brian also represents clients in investment treaty arbitrations.
Elizabeth is a partner in the Atlanta office. Focusing on the energy, infrastructure, and technology industries, Elizabeth represents clients in high-profile matters involving major, long-term projects and foreign investments. Her cases are regularly at the cutting-edge of international arbitration practice, and several exceed USD 1 billion in dispute.
Wade is a partner in the Singapore office, head of the International Arbitration practice, and leader of the Asia disputes group. He has represented clients in several of the largest international commercial and investment arbitrators on record in Asia and Latin America, particularly in the energy sector.
Anisha is a senior associate in the Singapore office. Focusing on the energy sector, Anisha represents clients in high-stake international commercial and investment disputes, including matters involving price reviews, crude oil contamination, subsurface gas migration, decommissioning, oil & gas infrastructure, force majeure, and take-or-pay obligations. Several of her commercial and investor-State arbitrations exceed USD 1 billion in dispute and form landmark international arbitration cases.
For more information on King & Spalding‘s International Arbitration practice, click here
Congratulations to the team again, and Jus Mundi wishes them good luck for the future!