Gibson Dunn

Arbitration Team of the Month #15

Introduction

As we all know, awards are final and binding on the parties to the dispute. Like litigation or other dispute resolution mechanism, there are winners and losers in arbitration. When the award-debtors are unsatisfied with the result, the post-award remedies provided in the relevant treaties, especially in the ICSID Convention, or in arbitration laws of the seat are the last resort to fairness and justice. For the award-creditors, the enforceability of the award is the rasion d’être of the arbitration process. It is in this final procedure that the party’s rights and expectations can be realized and materialized. These procedures and practical issues are essential for foreign investors to consider when planning to commence investment arbitrations. Gibson Dunn is prominent for its Energy Charter Treaty work and its enviable prominence in litigation involving arbitration issues, including enforcement proceedings.

This month, Jus Mundi is pleased to bring light to Gibson Dunn’s International Arbitration Practice Group, along with an interview with its practice leaders Cyrus Benson and Penny Madden QC.

Recent victory cases analysis: Antin v. Spain and Yukos Capital v. Russia

Antin v. Spain (Infrastructure Services Luxembourg S.à.r.l. and Energia Termosolar B.V. v. Kingdom of Spain)

On July 30, 2021, an ICSID annulment committee upheld a €101 million ICSID award in favor of solar investors, formerly known as Antin.

Background

• The dispute relates to certain measures taken by Spain in the renewable energy sector that significantly reduced the level of subsidies available to renewable energy generators.
• In 2011, the investors acquired shares in two operational concentrated solar power plants in Spain.
• The favourable feed-in tariff mechanisms guaranteed under the Royal Decree 661/2007 in force when the investors acquired their investment, however, were then subjected to significant changes, including the repeal of the Royal Decree 661/2007 in its entirety and adoption of a series of other measures in 2013-2014.
• In October 2013, the investors submitted their request for arbitration under the Energy Charter Treaty (“ECT”).
• In May 2018, the tribunal composed of Dr. Eduardo Zuleta Jaramillo (President), Francisco Orrego Vicuña (appointed by the investor), and Christopher Thomas QC (appointed by the State) issued an award, dismissing Spain’s intra-EU jurisdictional objection and found Spain had violated the ECT and ordered it to pay €112 million in damages plus interest and costs to Antin.
• In 2019, the award was trimmed down to €101 million by a rectification decision. Spain applied for annulment subsequently.
• In 2021, the European Commission announced that it is opening a State aid investigation into the Antin v. Spain arbitral award, but there have been no conclusive findings by the Commission yet.

Committee

• Cavinder Bull (President of the ad hoc Committee)
• José Antonio Moreno Rodríguez (Member)
• Nayla Comair-Obeid (Member)

Committee’s decision

• The committee found that the tribunal did not exceed its powers in assuming jurisdiction over the Parties’ intra-EU dispute, and the damages awarded by the tribunal were not a manifest excess of its powers.
• The committee considered that the tribunal did not seriously depart from a fundamental rule of procedure by rejecting Spain’s request to submit the Achmea judgment and the Commission’s 2017 Decision to the record months after the merits hearing.
• The committee also found that the tribunal had provided comprehensible reasons for not applying EU law to its determination of jurisdiction, finding Spain liable for breaches of the ECT, and its assessment of damages.

Legal rationale
Spain has raised three grounds for annulment: 1. manifest excess of powers by the tribunal; 2. serious departure from a fundamental rule of procedure; 3. failure to state reasons in the award.

• Regarding the first ground, the tribunal agreed with the claimants that the term “manifest” refers to an excess that is “obvious”, “clear” or “self-evident”.
  • Noting the fact that 56 other tribunals had dismissed the intra-EU jurisdictional objection raised by Spain, the committee deemed that the tribunal’s decision was tenable and not clearly or self-evidently wrong.
  • As for the damages awarded by the tribunal, the committee stated that it could not review de novo the facts, evidence, and criteria, nor could it re-evaluate the quantum of damages that the tribunal should have awarded.
    • The committee recognized that the tribunal only granted damages for the claimants’ loss of cash flows after June 2014. Accordingly, the initial award of €148 million was reduced to €137 million by the rectification decision. The committee also noted that the tribunal accounted for its finding that the plants had 25 years of useful life (as opposed to 40 years as argued by the investors) by deducting €36 million from the total damages claimed by the investors.
    • The committee also found that Spain’s further arguments in relation to the need for adjustment of the valuation model with respect to Spain’s certain measures had not been raised before the tribunal.
• With respect to the second ground, the committee first addressed the applicable standard and conditions for annulment.
  • It emphasized that tribunals may refuse to admit documents to the record in a multitude of circumstances. Citing Pey Casado v. Chile, the committee considered that it was sufficient that the outcome “might have been substantially different”.
  • The committee noted that the parties had extensively briefed the intra-EU objection during the arbitration. It was also considered within the tribunal’s discretion whether to accept Spain’s further submissions, which both parties had already accepted in the first procedural order. The committee reckoned that the Achmea judgment and the Commission’s 2017 Decision would not have changed the tribunal’s overall analysis since the tribunal had already found that any alleged problem of incompatibility between EU law and the ECT, if there was one, was to be sorted out by the EU and the EU States counterparties to the ECT.
• Concerning the third ground, the committee first acknowledged the high standard for annulment, that there are gaps in the reasoning so large as to make it impossible to follow “from Point A. to Point B.” It emphasized that the annulment should only apply where the relevant reasons are “incapable of standing together on any reasonable reading of the decision”. The committee added that when assessing whether the tribunal had provided reasons, an award “must be considered in its entirety”.
  • For not applying EU law, the committee found that the tribunal had interpreted Article 26(1) of the ECT in its ordinary meaning and had also considered and explained the object and purpose of the ECT did not preclude intra-EU arbitration. It held that the tribunal had stated clearly and comprehensibly its reasons for concluding that EU law would not apply to bar its jurisdiction.
  • For its findings on liability, the committee pointed out that the tribunal had stated that while exercising the State’s regulatory power, a State cannot “suddenly and unexpectedly eliminate the essential features of the regulatory framework in place”. In addition, the tribunal had given “clear and specific reasons” for finding that RDL 9/2013 and Law 24/2013 had removed key features of the RD 661/2007 by replacing the feed-in tariff mechanisms and withdrawing the right to priority grid access.
  • For its assessment of damages, the committee believed that the tribunal had provided clear and comprehensible reasons for assessing the reduction of the investment’s fair market value to calculate damages. In the committee’s view, the tribunal had no obligation to provide “a detailed point by point justification of every step” taken in valuation, and the tribunal’s lack of reasoning on issues not argued before it cannot constitute grounds for annulment. In any event, the committee felt that it was clear from the award that the tribunal had considered and was attentive to the parties’ evidence and expert reports on damages and the value of the investors’ lost cash flows.

Yukos Capital v. Russia (Yukos Capital SARL v. The Russian Federation)

In an award dated July 23, 2021, a Geneva-seated tribunal constituted under the UNCITRAL Arbitration Rules 1976 found Russia liable and ordered it to pay approximately US$5 billion in damages (including interest), plus legal fees and costs.

Facts

• The present dispute concerns loans that the claimant extended to its former parent company Yukos Oil in 2003 and 2004, which was reportedly expropriated by Russia.
• In 2005, the claimant’s direct parent company Yukos Finance, a Dutch company owned by Yukos Oil, transferred ownership of Yukos Capital to a Dutch stichting which became the sole shareholder of Yukos Capital through Yukos International (another Dutch entity) within the Yukos Group.
• In 2007, Yukos Oil was dissolved after bankruptcy proceedings in Russia.
• In 2013, Yukos Capital initiated arbitration proceedings against Russia under the ECT.
• In 2017, after considering Russia’s various objections to jurisdiction, the majority found (with Prof Stern dissenting on the first two grounds) that: (i) Russia’s provisional application of the ECT under the terms of Article 45(1) does include its consent to international arbitration under Article 26(3)(a); (ii) the claimant’s loans constituted an investment protected under the ECT as a debt of a company associated with an Economic Activity in the Energy Sector; and (iii) citizens or nationals of a third state did not control the claimant when Russia sought to deny the claimant the benefits of the ECT under Article 17(1).

Tribunal constitution

• Campbell Alan McLachlan QC (President)
• William F. Rowley QC (Appointed by the investor)
• Brigitte Stern (Appointed by the State)

Tribunal’s decision

The tribunal found Russia illegally expropriated Yukos Capital’s loans to Yukos Oil and denied it justice in the Russian courts in what represented the very opposite of due process of law.

Legal rationale

The award is currently subject to a confidentiality order, so the reasoning behind the decision is unfortunately not available.

Interview with Cyrus Benson and Penny Madden QC

1. What’s your insight on the enforcement strategy your team followed on the Teinver v. Argentina award?

We are honoured to have been retained for this enforcement assignment.  Our enforcement team is renowned for developing innovative and truly global collection strategies that bring adversaries to the negotiating table.  We would expect this case to showcase all of those skills.

2. Congratulations on the Antin v. Spain case! What challenges did you face in the course of the annulment of the award?

The Antin annulment case raised a relatively large number of unrelated annulment grounds, making it an unusually complex annulment proceeding requiring substantial written submissions.  This complexity was exacerbated by the fact that Spain submitted two lengthy expert reports on EU law.  In fact, it was the very first annulment case to address an underlying ICSID tribunal’s findings on the intra-EU application of the ECT.  The team did a great job rising to these challenges and we are very pleased with the Committee’s Decision rejecting all grounds for annulment and awarding our client full recovery of its costs.

3. Congratulations again on the Yukos Capital v. Russia case! Since the final award has not been made public, could you please highlight the tribunal’s reasoning?

We regret that we currently are not in a position to say much about the tribunal’s reasoning given that the award has not yet been made public.  Essentially, on the merits the tribunal agreed that Yukos Capital and its investments were not spared in the Russian Federation’s onslaught against Yukos Oil Company, a large-scale and brutal expropriation that has been the subject of numerous arbitrations and legal proceedings around the world.  This included, but was not limited to, the treatment of Yukos Capital when it submitted its claims as a creditor in the Yukos Oil “bankruptcy”, treatment the tribunal found to have represented a denial of justice.

4. What makes Gibson Dunn the prime choice for its clients in international arbitration and national enforcement/annulment proceedings?

Clients really value the comprehensive nature of our practice. We are a go-to firm for the complete international arbitration package – from advice at the time the transaction and arbitration provisions are being structured, to the collection of cash after a favourable award (where we work closely with the firm’s pre-eminent enforcement practice). Our practice boasts a combination of extraordinary advocacy, strategic analysis and excellent lawyers at every level —each characteristics of the firm as a whole. Our high-profile partners are backed up by a strong, continually expanding associate base with a broad range of expertise and experience. Our dedicated teams work in close collaboration with our clients to ensure we achieve the best results and—again in line with the firm’s overall philosophy—partner to associate leverage is low relative to our competitors, which means our partners are very “hands-on” and teams are smaller and highly integrated. We also work closely with our experienced litigators to meet our client’s needs in their most complex disputes (critically, most complex disputes also involve parallel or related litigation, which we are able to handle seamlessly).

5. Cyrus, you have worked almost 15 years at Gibson Dunn; can you share your understanding of leadership?

In my now 30 years of practice, I’ve always seen the best leaders do so by example and I’ve tried to emulate that. The example then needs to reflect core values—hopefully in my case, professionalism, credibility, creative thinking, clear communication, an ability to listen and learn, and team play. Leadership also means knowing and understanding the members of your team, and being able to help them play to their strengths and feel supported in striving to improve and fulfil their own goals and potential

6. Penny, what was your most instrumental experience that led you to the path of a Queen’s Counsel?

A really pivotal experience in my path to Queen’s Counsel was representing Orascom Telecom against Algeria in its multi-billion dollar claim for expropriation and breach of the FET standard. It was a claim that had it all: creeping expropriation, criminal and civil proceedings in Algeria, complex tax claims, knotty legal issues, and a very real human story involving livelihoods and freedom. The team was incredible – putting heart and soul (and countless hours) into the case, and I had the privilege of working alongside the masterful Toby Landau QC and opposite the formidable, much-missed Emmanuel Gaillard – it was an inspirational experience that taught me the importance of teamwork, story-telling and knowing your case inside out.

Presentation of the firm

Gibson Dunn’s International Arbitration Practice Group advises multinational corporations in commercial and investment treaty arbitration proceedings administered by and/or under all major arbitral institutions and rules. In addition, the Group regularly assists clients in enforcement proceedings before national courts under a variety of national arbitration laws and the New York Convention. It has extensive experience in the energy, telecommunications, mining, construction, pharmaceutical and banking sectors, among others.

The practice is co-led by Cyrus Benson and Penny Madden QC.

Key clients

AES Corporation, Agility Public Warehousing Company, Anglo American, Bechtel Corporation, Centerbridge Partners Europe LLP, Corral Morocco Holdings, Crescent Petroleum, Crystallex, Dana Gas, Eiser Infrastructure Limited / Energía Solar Luxembourg, Exelon Corporation, General Electric, Hyatt Corp., Hydro Energy 1 S.à r.l. / Hydroxana Sweden AB, InfraCapital, Infrastructure Services Luxembourg S.à.r.l. / Energia Termosolar B.V., S.à r.l., Kimberly-Clark, Liberty Mutual, MGM Resorts, RREEF Infrastructure, RWE, Veon, Vivendi, Yukos Capital.

Track-record and recent instructions (non-confidential only)

• The firm was instructed by Titan Consortium, who was entitled to the Teinver v. Argentina award and annulment decision (worth US$325 million), in the enforcement proceedings before the US District Court of the District of Columbia.
• Apart from the recent victory in Antin v. Spain, the firm is acting for Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB in the ICSID annulment proceedings against Spain and Eiser Infrastructure and Energía Solar Luxembourg S.à r.l.in ICSID resubmission proceedings against Spain. The dispute is also related to measures implemented by Spain modifying the regulatory and economic regime of renewable energy projects.
• The firm is representing Liberty Seguros and a UK affiliate in an ICSID additional facility claim against Venezuela concerning the insurance sector as well as a related ad hoc arbitration under UNCITRAL Rules.
• The firm represents Corral Morocco Holdings in ICSID proceedings against Morocco arising from the expropriation of Morocco’s only domestic refinery.
• The firm is acting for Tethyan in a discovery bid in enforcement proceedings of a US$6 billion ICSID award against Pakistan before the US District Court for the Southern District of New York.
• Shareholders in Devas Multimedia have retained the firm for an investment treaty claim against India over enforcement of ICC and UNCITRAL The firm has also engaged in Devas’ enforcement efforts.
• The firm is representing European hydropower investors before an ICSID ad hoc committee in the annulment proceedings of Hydro Energy 1 and Hydroxana v. Spain. The dispute was in relation to Spain’s renewable energy reform.
• The firm is representing Crystallex before the US District Court for the District of Delaware to enforce a US$1.4 billion ICSID award against Venezuela.
• In 2020, the firm helped the PV Investors obtain a €91 million ECT award against Spain.
• The firm is representing Global Telecom Holding S.A.E. (“GTH”) in an annulment proceedings in relation to claims brought against Canada in relation to unfair treatment of the GTH’s investment in the Canadian telecommunications market.
• The firm won a comprehensive victory on behalf of Crescent Petroleum and Dana Gas against MOL, concerning the settlement of a long-running dispute with the Kurdistan Regional Government.
• The firm is representing VIP Kyrgyzstan Holdings AG and Menacrest AG in connection with a claim for unfair treatment with respect to unfair tax assessments imposed on Kyrgyz-registered mobile operator Sky Mobile, which holds licences to operate throughout Kyrgyzstan.

Table of public international law cases involving Gibson Dunn

Gibson Dunn is currently acting as counsel in multiple investor-State and commercial arbitration cases, notably representing investors in ICSID proceedings.

Gibson Dunn 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 Gibson Dunn available on Jus Mundi.

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(Note*: This table is not exhaustive.)

Spotlight – the Antin v. Spain and Yukos Capital v. Russia team

• Cyrus Benson (Partner)

Cy Benson is a US and English qualified partner in the London office and serves as Co-Chair of the firm’s International Arbitration Practice Group. He represents clients from a wide variety of sectors before commercial and investment treaty tribunals with experience in telecoms, oil & gas, mining, and infrastructure disputes.

• Penny Madden QC (Partner)

Penny Madden is an English qualified Queen’s Counsel and serves as Co-Partner-in-Charge of the London office. She is Co-Chair of the International Arbitration Practice Group and a member of the firm’s Transnational Litigation Practice Group. Her practice focuses on international arbitration with expertise in shareholder, telecommunications, SPA, energy, international trade, and insurance disputes, and she regularly sits as an arbitrator.

• Jeffrey M. Sullivan QC (Partner)

Jeff Sullivan is a US and English qualified Queen’s Counsel and partner in the London office, where he is a member of the firm’s International Arbitration Group. He represents clients in both commercial and investment treaty arbitrations. He also regularly sits as an arbitrator. His practice focuses on disputes arising in the energy, extractive industries, and infrastructure sectors.

• Lindsey D. Schmidt (Partner)

Lindsey D. Schmidt is a partner in the New York office and a member of the firm’s Litigation, International Arbitration and Judgment and Arbitral Award Enforcement Practice Groups. Her practice focuses on international commercial arbitration and investor-state arbitrations. She has experience in disputes relating to mining, steel, telecommunications, insurance, aviation, and financial services.

• Rahim Moloo (Partner)

Rahim Moloo is a partner in the New York office. He advises clients on structuring foreign investments and matters of international law and sits as arbitrator in complex international cases. His experience spans several industries, including energy, mining, telecommunications, financial services, infrastructure, construction, and consumer products.

• Ceyda Knoebel (Associate Attorney)

Ceyda Knoebel is an English-Turkish dual-qualified solicitor, a senior associate in the London office, and a member of the firm’s Dispute Resolution and International Arbitration Groups. She has experience in commercial and investment treaty arbitration proceedings as well as enforcement of arbitral awards, specializing in energy, oil and gas, financial services, banking, and construction.

• Piers Plumptre (Associate Attorney)

Piers Plumptre is an English qualified barrister and associate working in the London office and a member of the Dispute Resolution and International Arbitration Groups. His practice includes international arbitration and enforcement, complex commercial litigation, financial services disputes, international fraud, and white-collar crime.

• Sophy Helgesen (Associate Attorney)

Sophy Helgesen is an English-qualified solicitor in the London office and a member of the firm’s Dispute Resolution and International Arbitration Groups. She specializes in investment treaty cases and complex commercial arbitrations under ICSID, UNCITRAL, and LCIA rules across various sectors, including energy, mining, construction, media, and associated English High Court applications.

• Ankita Ritwik (Associate Attorney)

Ankita Ritwik is an associate in the Washington, DC office. She is a member of the Litigation and International Arbitration Practice Groups. Her recent experience includes representing multinational companies with investments in Europe, Latin America, Asia, and Africa, in the energy, manufacturing, and mining industries in international arbitration and enforcement proceedings.

• Stephanie Collins (Associate Attorney)

Stephanie Collins is an English law qualified solicitor and associate in the London office and a member of the firm’s International Arbitration Group. She represents clients in both commercial and investment treaty arbitrations. Her practice focuses on disputes in energy (renewables, oil and gas), extractive industries, infrastructure, and financial services sectors.

• Theo Tyrrell (Associate Attorney)

Theo Tyrrell is an English-qualified associate in the London office, practicing in the firm’s Litigation and International Arbitration Groups. He has broad experience in commercial litigation, international arbitration, and regulatory investigations.

 For more information on Gibson Dunn’s international arbitration practice, click here.

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